Free Pretrial Memorandum - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Case No. 00-cr-00531-WYD-01 UNITED STATES OF AMERICA, Plaintiff, v. 1. WILLIAM CONCEPCION SABLAN, Defendant.

GOVERNMENT'S MEMORANDUM RE: JURY SELECTION

COMES NOW the United States of America, by and through Brenda K. Taylor and Philip A. Brimmer, Assistant United States Attorneys, and submits the Government's memorandum on pretrial questioning of potential jurors regarding their views, basic beliefs, and core values regarding capital punishment and their ability to serve impartially in this case. 1. Standard of Judicial Review

A venire member may be properly challenged for cause and excluded from capital jury service when the trial judge is left with a "definite impression" that the juror would not be able to faithfully and impartially follow the law applicable to capital trials. Wainwright v. Witt, 469 U.S. 412, 425-26 (1985). The trial court's determination that a potential juror would be unqualified to serve in a fair and impartial manner on a capital -1-

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jury based on juror bias is a finding of fact entitled to great deference or a presumption of correctness, Witt, 469 U.S. at 428-29, and juror bias need not be proved with "unmistakable clarity," Witt, 469 U.S. at 424. Trial judges' decisions to excuse jurors on this basis, generally, are given considerable deference on appeal because such decisions are based in large part on faceto-face credibility assessments of the prospective jurors. United States v. Flores, 63 F.3d 1342, 1355 (5 th Cir. 1995) (citing and quoting Witt, 469 U.S. at 426-29). But see United States v. Chanthadara, 230 F.3d 1237, 1269-70 (10 th Cir. 2002) discussed infra, for the correct standard of review when the juror is excused prior to voir dire based upon her answers written in a juror questionnaire. Although trial judges' decisions to excuse jurors for cause based on juror bias are given considerable deference on appeal, it is reversible error to improperly exclude a "death-qualified" juror for purported inability to follow the law applicable to capital proceedings. Gray v. Mississippi, 481 U.S. 648, 665-66 (1987).1 Under Witherspoon and Witt, general reservations regarding the death penalty or expressed conscientious or religious scruples against its infliction, are not sufficient to exclude jurors if they would

It should be noted that Witt and Witherspoon mark the limits on the government's power to exclude jurors based on bias against the death penalty and do not establish an affirmative right to death-qualified jurors. Accordingly, it is not per se reversible constitutional error to improperly exclude for cause a death-qualified juror on grounds unrelated to the death penalty. Rather, exclusions on other grounds are reviewed under the same standard applicable in a non-capital context. -2-

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not prevent or substantially impair their performance as jurors. Witherspoon v. Illinois, 391 U.S. 510, 520-22 (1968); Witt, 469 U.S. at 423. Therefore, a juror who has general reservations about, or conscientious scruples against, the death penalty, but who nevertheless under Witherspoon is eligible to serve cannot be excluded for cause without committing reversible error. Gray, 481 U.S. at 659. See also Adams v. Texas, 448 U.S. 38, 49-50 (1980) (exclusion impermissible if the jurors' reservations about the death penalty only mean that they would deliberate with greater seriousness and gravity, or their deliberations would involve them emotionally). 2. Standard for Juror Qualification

The legal standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment is, "whether the juror's views would `prevent or substantially impair the performance of his [or her] duties as a juror in accordance with his instructions and his oath.'" Morgan v. Illinois, 504 U.S. 719, 728 (1992) (quoting Witt, 469 U.S. at 424 and Adams, 448 U.S. at 45). This standard is based on the defendant's right to a fair and impartial jury, Witt, 469 U.S. at 418, and the legitimate state interest in administering constitutional capital sentencing schemes. Witt, 469 U.S. at 423. As set forth in Morgan, the legal standard for determining when a prospective juror may be excluded for cause applies equally to both proponents and opponents of capital punishment. Morgan, 504 U.S. at 734 n.7. This legal standard also applies to

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impartial decision making during the guilt phase deliberations, as well as the penalty phase deliberations. Witherspoon, 391 U.S. at 522-23 n.21. "Prevent" in this context means "automatically" or "always" voting against the death penalty [or for it] regardless of the facts. Witherspoon, 391 U.S. at 520-22; Witt, 469 U.S. at 422; Morgan, 504 U.S. at 733. "Substantially impair" in this context means a juror "might" vote for the death penalty [or against it] under certain personal standards rather than following the law. Witt, 469 U.S. at 422; Morgan, 504 U.S. at 734. 3. Responses From Jurors Justifying Exclusion

Trial courts' exclusion of jurors for substantial impairment of their ability to fairly and impartially apply the law applicable to capital proceedings have been sustained on appeal despite the fact that jurors' answers have been: equivocal;2 ambiguous;3 contradictory;4 or conflicting,5 or when their beliefs would "interfere" with their decision.6

United States v. Webster, 162 F.3d 308, 340-41 (5 th Cir. 1998), cert. denied, 528 U.S. 829 (1999).
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United States v. Tipton, 90 F.3d 861, 879-81 (4 th Cir. 1996). Id. Id. Witt, 469 U.S. at 415-16 and Tipton, 90 F.3d at 881. -4-

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Jurors have also been properly excused when they deem the death penalty appropriate or inappropriate only for specific categories of murder or murderers such as: 1) multiple murders or serial murderers, Fuller v. Johnson, 114 F.3d 491, 500 (5 th Cir. 1997) (juror properly excluded based on her opinion that only multiple murders merited capital punishment) and United States v. Moore, 149 F.3d 773, 780 (8 th Cir. 1998) (juror properly excluded based on his response that he would consider the death penalty if the person murdered more than 100 people, not merely one or two); 2) benchmark personalities, Stewart v. Dugger, 877 F.2d 851, 855-57 (11 th Cir. 1989) (juror properly excused when he responded that he would have to think hard about imposing it for a person such as Charles Manson) and Antwine v. Delo, 54 F.3d 1357, 1369 (8 th Cir. 1995) (juror properly excused when he responded that he could consider the death penalty for someone like Adolf Hitler after he had expressed unequivocal opposition to the death penalty); 3) alcohol-related murders, Davis v. Executive Dir. of Dept. of Corrections, 100 F. 3d 750, 778 (10 th Cir. 1996) (juror properly excused because he stated that his experience with and views about alcohol would prevent him from imposing the death penalty in an alcohol-related crime); 4) victim involved with drugs, United States v. Flores, 63 F.3d 1342, 1356 (5 th Cir. 1995) (court did not abuse its discretion when it excused a venire member who stated that he could never vote for the death penalty in a case in which the victim was involved in drugs); 5) murder of a family member, Bell v. Lynaugh, 828 F.2d 1085, 1092 (5 th Cir. 1985) (juror properly excused when after

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unambiguously stating that she could never impose the death penalty she qualified her answer by stating that she could impose the death penalty on the killer of a family member); or 6) murder of a special victim, Flores, 63 F.3d at 1355 (juror could impose the death penalty only if the defendant had abused and murdered a small child); LaRette v. Delo, 44 F.3d 681 (8 th Cir. 1995) (juror would vote against the death penalty unless the victim was "extremely close to her"). Also, jurors have been properly excluded when they informed the court they would consider the death penalty only in extreme hypothetical situations. Antwine, 54 F.3d at 1369 (Adolf Hitler) (small child brutally murdered); Webster, 162 F.3d at 340 (juror believed that "the possibility is there" that situations existed in which juror could impose a death sentence). Finally, jurors have also been properly excluded when they expressed their intent to hold the government to an arbitrary, improper, or impossible evidentiary standard. Flores, 63 F.3d at 1355-56 (proper to excuse juror who would impose the death penalty only if the defendant confessed or juror witnessed murder); Drew v. Collins, 964 F.2d 411, 416-17 (5 th Cir. 1992) (proper to excuse juror who would hold government to higher standard than reasonable doubt). 4. Procedures for Questioning Prospective Capital Jurors

Questions regarding jurors' attitudes toward the death penalty need not be included in the juror questionnaire. Flores, 63 F.3d at 1353 (court in its discretion omitted all

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capital questions from the juror questionnaire, preferring instead to discuss their views when they reported). Individual and sequestered voir dire is not required in a capital murder case. Wingo v. Blackburn, 783 F.2d 1046, 1051-52 (5 th Cir. 1986) (jurors brought into the courtroom twelve at a time and questioned). Examining jurors in panels of five in a capital case has been held to meet the requirements of constitutional due process. Trujillo v. Sullivan, 815 F.2d 597, 607 (10 th Cir. 1987). However, the "preferred approach" in capital cases is to conduct individual examination of the jurors. Cummings v. Dugger, 862 F.2d 1504, 1508 (11 th Cir. 1989). While most courts allow attorney participation in some form - usually direct questioning with a time limit - attorney participation is not required. Trujillo, 815 F.2d at 607 (exclusively court-conducted, death-qualifying voir dire without giving counsel right to "rehabilitate" does not violate due process). Whether the court conducts individual or small group capital voir dire, the means employed by the trial court to test the impartiality of the jurors must create a reasonable assurance that prejudice would have been discovered if present. United States v. Sarmiento-Rozo, 676 F.2d 146, 148 (5 th Cir. 1982). 5. Scope of Questioning

The exact nature and scope of the voir dire questions is committed to the broad discretion of the district court and are subject to review only for abuse of that discretion.

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Tipton, 90 F.3d at 877 (citing Rosales-Lopez v. United States, 451 U.S. 182, 189 (1981) and Ham v. South Carolina, 409 U.S. 524, 527 (1973)); accord Fed.R.Crim.P. 24(a). a. General Morgan Questions

However, the Constitution does require that the court in conducting deathqualification voir dire do more than pose general fairness and "follow the law" questions in detecting jurors who cannot perform their duties in accordance with the law. Morgan, 504 U.S. at 734-35. As pointed out by the Supreme Court in Morgan, "[a]s to general questions of fairness and impartiality, such jurors could in all truth and candor respond affirmatively, personally confident that such dogmatic views are fair and impartial, while leaving the specific concern unprobed." Morgan, 504 U.S. at 735. "[P]art of the guarantee of a defendant's right to an impartial jury is an adequate voir dire to identify unqualified jurors." Morgan, 504 U.S. at 729. In Morgan the Supreme Court was presented with the question of whether, during jury selection for a capital defendant, a trial court may, consistent with the defendant's right to due process, refuse to inquire into whether a potential juror would automatically impose the death penalty upon the defendant after conviction for a capital offense. Morgan, 504 U.S. at 721. Morgan's defense attorney asked the trial judge to ask all prospective jurors whether upon conviction they would, "automatically vote to impose the death penalty no matter what the facts are?" Morgan, 504 U.S. at 723 (emphasis added). The trial court refused defense counsel's request. Morgan, 504 U.S. at 723.

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The Supreme Court held that the trial judge's refusal to inquire into the prospective juror's views, as requested by defense counsel, was constitutionally insufficient and that a capital defendant is entitled to challenge for cause and have removed on the ground of bias a prospective juror who will automatically vote for the death penalty irrespective of the facts or the trial court's instructions on the law. Morgan, 504 U.S. at 726-27 (emphasis added). As stated by the Supreme Court, it is clear that such a juror is not an impartial juror and must be removed for cause. A juror who will automatically vote for the death penalty in every case will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to do. Indeed, because a juror has already formed an opinion on the merits, the presence or absence of either aggravating or mitigating circumstances is entirely irrelevant to such a juror. Therefore, ... a capital defendant may challenge for cause any prospective juror who maintains such views. Morgan, 504 U.S. at 729. Consequently, upon request of the defendant, the trial court must inquire whether potential jurors would automatically impose the death penalty upon convicting the defendant, because a juror who would automatically vote for death is not following the law, or considering the facts or mitigating evidence, and therefore, is not a fair and impartial juror, Morgan, 504 U.S. at 723. If such a request is made by defense counsel, the government submits that the appropriate and complete inquiry, consistent with the Court's analysis and holding in Morgan is, "If you found the defendant guilty of [the capital offense] would you

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automatically vote to impose the death penalty regardless of the facts, the mitigating evidence, or the law?" Morgan, 504 U.S. at 723, 733-34, 738. In addition to the specific inquiry required under Morgan, basic beliefs and core values are appropriate areas of inquiry. United States v. McVeigh, 153 F.3d 1166, 1208 (10 th Cir. 1998), cert. denied, 526 U.S. 1007 (1999), and open ended questions regarding the jurors' views, beliefs, and core values are preferred. See State v. Williams, 550 A.2d 1172, 1182 (N.J. 1988). b. Specific Morgan Questions

Frequently, counsel for capital defendants have sought to expand the scope of capital questioning required by the Supreme Court in Morgan and cite its holding as authority in support of their proposed inquiry into how a prospective juror would vote in advance of trial when faced with specific facts or specific aggravating and mitigating factors. Such an expansive interpretation of Morgan was rejected by the court in McVeigh. McVeigh, 153 F.3d at 1206-08. The trial judge in McVeigh ruled that questions seeking to determine what prospective jurors think about imposing the death penalty in a particular case, or upon consideration of potential evidence, are broader than the scope of questioning required under Morgan, which only requires ascertaining the jurors' basic beliefs and core values about the death penalty, "regardless of the facts and circumstances," and which does not

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require allowing defendants to predetermine jurors' views about punishment for the particular crime charged. McVeigh, 153 F.3d at 1207-08. Thus, case-specific factual questions about the evidence to be presented in the guilt phase, or how a juror would vote if presented with specific aggravating or mitigating factors in the penalty phase, are broader than the scope of questioning required under Morgan. McVeigh, 153 F.3d at 1207-09. See also Tipton, 90 F.3d at 878. Additionally, case-specific predisposition questions, pre-commitment questions, and questions calling for speculation on the part of the juror are prohibited since Morgan does not allow defendants to pre-determine jurors' views of the appropriate punishment for the particular crime charged and does not require that the questions at issue be asked. McVeigh, 153 F.3d at 1208. Questions are objectionable when the question is predicated on facts specific to the case at issue or upon speculation as to what facts may or may not be proven at trial. McVeigh, 153 F.3d at 1207. As the Tenth Circuit correctly stated in McVeigh, "Morgan was written as a reciprocal case to Witherspoon, and is designed to identify potential jurors who would automatically impose the death penalty for conviction of a capital offense. When a defendant asks a juror to speculate or pre-commit on how that juror might vote based on any particular facts, the question strays beyond the purpose and protection of Morgan." McVeigh, 153 F.3d at 1207 (emphasis added).

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See also Witherspoon, wherein the court noted, "[A] prospective juror cannot be expected to say in advance of trial whether he would in fact vote for the extreme penalty in the case before him. The most that can be demanded of a venireman in this regard is that he be willing to consider all of the penalties provided by. . . law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings." 391 U.S. at 522 n.21 (emphasis in original). Finally, improperly phrased questions ­ such as those which misstate the law or confuse the issues ­ are not permitted under Morgan. McVeigh, 153 F.3d at 1207. 6. Rehabilitation of Predisposed Jurors

As indicated earlier on page two in the Government's memo of law, general reservations regarding the death penalty or general support for the death penalty are not sufficient grounds for excluding a juror. Witherspoon 391 U.S. at 520-22. The test is whether the juror's general reservations or general support regarding the death penalty "prevent or substantially impair" the juror's performance of his duties as a juror in accordance with his instructions and his oath. Morgan, 504 U.S. at 728. Thus, jurors who express initial support either for or against the death penalty need not be automatically disqualified from capital jury service where the record as a whole reflects that the juror is able to set aside that predisposition and apply the proper standards for a decision to the facts of the case. Although not required, see Trujillo v. Sullivan, supra, the court or counsel can engage the juror in a discussion designed to determine whether or not the juror

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can be "rehabilitated," and thus, shown to be impartial, despite his initial answers -particularly where the juror has not been instructed on the correct application of the law regarding capital sentencing hearings. The test for seating a juror with a predisposition regarding the appropriate punishment is whether the juror can lay aside his or her impression or opinion and render a verdict based upon the evidence. Witt, 469 U.S. at 423-24. Jurors who are supporters of the death penalty are acceptable for capital service if the court believes they have changed their position and set aside their views when questioned further or supplied with the correct and applicable law. See Bunch v. Thompson, 949 F.2d 1354, 1367 (4 th Cir. 1991) (two jurors agreed that the death penalty should be applied in every murder, but both changed their positions upon immediate re-questioning); Sloan v. Delo, 54 F.3d 1371, 1378 (8th Cir. 1995) (jurors, despite initial comments indicating they would automatically apply the death penalty, after further questioning, indicated they could consider imposing a life sentence without parole). Ultimately ­ whatever their beliefs, views, or opinions regarding capital punishment ­ jurors must be able to follow the court's instructions and weigh the aggravating and mitigating factors to determine the appropriate punishment. See United States v. Hall, 152 F.3d 381, 412-13 (5 th Cir. 1998), abrogated on other grounds in United States v. Martinez-Salazar, 528 U.S. 304 (2000) (juror who asserted a pro-death bias for all kidnaping cases resulting in death, asserted he could follow instructions and weigh the

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aggravating factors against the mitigating factors); Webster, 162 F.3d at 343 (statements in ignorance of the law the court would instruct the juror to apply to the defendant's hypothetical questions, combined with affirmation that the juror would be able to follow the instructions and procedures allowed the court to find the juror competent to serve). Whatever punishment is appropriate under the facts and the law ­ whether it is a sentence of life or a sentence of death ­ the juror must be able impose it, regardless of his or her own personal beliefs regarding the death penalty. Gray, 481 U.S. at 653.

Respectfully submitted this 2nd day of November, 2006, TROY A. EID United States Attorney BY: s/ Brenda K. Taylor BRENDA K. TAYLOR Assistant U.S. Attorney U.S. Attorney's Office 1225 17th 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 17th Street, Suite 700 Denver, Colorado 80202 Telephone (303)454-0100 FAX: (303) 454-0406 E-mail address: [email protected] Attorney for Government

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CERTIFICATE OF SERVICE I hereby certify that on this 2nd day of November, 2006, I electronically filed the foregoing GOVERNMENT'S MEMORANDUM RE: JURY SELECTION 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] Dean Steven Neuwirth [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] Attorneys for Rudy Sablan Forrest W. Lewis [email protected] Donald R. Knight [email protected]

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