Free Motion for Reconsideration - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 1863

Filed 08/10/2006

Page 1 of 9

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, RUDY CABRERA SABLAN, Defendants.
______________________________________________________________________________

William Sablan's Motion For Reconsideration Of The Court's Ruling Allowing The Government To Present Evidence of Underlying Conduct Relating To Prior Convictions ________________________________________________________________________ Defendant William Sablan ("William"), through undersigned court-appointed counsel, respectfully requests the Court to reconsider a portion of its July 6, 2006 Order addressing William's Phase III motions. (Document 1836). More specifically, William seeks reconsideration of his "Motion To Limit Evidence Of Prior Convictions To The Fact Of Conviction And To Exclude Evidence Of Underlying Conduct [Wm-DP-19]." (Document 1686). That motion was addressed and denied at pages 20-26 of the Court's Order. As grounds, counsel state: 1. In its response to William's motion, the government advanced two arguments why it should not be limited to a documentary presentation of prior convictions, i.e., redacted charging documents, judgment and commitment orders, and statutory elements
1

Case 1:00-cr-00531-WYD

Document 1863

Filed 08/10/2006

Page 2 of 9

of the offenses of conviction, and but should instead be allowed to present evidence of the underlying criminal episode. 2. Its first argument was that presentation of evidence of the underlying conduct is mandated by the Supreme Court's death-penalty jurisprudence requiring particularized sentencing in capital cases. This argument misconstrues Supreme Court authority. 3. Four years after capital punishment was brought to a halt by Furman v. Georgia, 408 U.S. 238 (1972), the Supreme Court issued five opinions on new state death-penalty statutes that were enacted in response to Furman. In two of the cases, the Court held state statutes unconstitutional because they automatically called for death sentences in certain classes of murders without "particularized" consideration of the charged offense and of the individual defendant. Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 (1976). In Woodson, the Court wrote: A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. Id. at 304. In Roberts, it wrote: The constitutional vice of mandatory death sentence statutes lack of focus on the circumstances of the particular offense and the character and propensities of the offender is not resolved by Louisiana's limitation of first-degree murder to various categories of killings. Id. at 333. Both cases involved felony-murders where the defendants remained outside
2

Case 1:00-cr-00531-WYD

Document 1863

Filed 08/10/2006

Page 3 of 9

the store where employees were robbed, in order to act as a look-out. Because neither defendant was allowed to present that circumstance in mitigation or any other mitigating circumstance, the Court reversed their death sentences. In two other cases, Jurek v. Texas, 428 U.S. 262 (1976) and Gregg v. Georgia, 428 U.S. 153, 206 (1976), the Court upheld the state statutory schemes. The government's argument and/or the Court's Order rely upon the following language from each: "What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine." Jurek, 428 U.S. at 276; " . . . it is desirable for the jury to have as much information before it as possible when it makes the sentencing decision" Gregg, 428 U.S. at 204. (Document 1729 at 4; Document 1836 at 24). When these phrases are considered within the context of each case, they do not support the carte blanche the government is seeking. The issue in Jurek was the constitutionality of the Texas statute, which required the jury to answer three questions for purposes of its sentencing decision.1 The Supreme Court noted that in relation to the question regarding future dangerousness, "[t]he Texas Court of Criminal Appeals has yet to define precisely the meaning of such terms as `criminal acts of violence' or `continuing threat to society'." Id. at 272. It had, however,
The questions the jury was required to answer included: (1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; (2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and (3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased. Id. at 269. 3
1

Case 1:00-cr-00531-WYD

Document 1863

Filed 08/10/2006

Page 4 of 9

"indicated that it will interpret this second question so as to allow a defendant to bring to the jury's attention whatever mitigating circumstances he may be able to show. Id. (emphasis added). In concluding that the statute as a whole was constitutional, the Court stated that "Texas law essentially requires that one of the five [statutory] aggravating circumstances be found before a defendant can be found guilty of capital murder, and that in considering whether to impose a death sentence the jury may be asked to consider whatever evidence of mitigating circumstances the defense can bring before it." Id. at 273 (emphasis added). In Gregg, the issue was the constitutionality of the Georgia death-penalty statute. Although the defendant challenged the statute's wide scope of permissible evidence and argument in the penalty phase, the challenge was a facial challenge because neither the prosecutor nor the defense presented any additional evidence during the penalty phase. Id. at 60. The Court's response to that challenge was that "[s]o long as the evidence does not prejudice a defendant, it is preferable not to impose restrictions." Id. at 203-04. Of greater relevance to the issue at hand, the Georgia statute under review limited the evidence of prior convictions to a documentary presentation. It provided that at the penalty phase "the judge (or jury) shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions . . .. Id. at 163. Two years later, the Court decided Lockett v. Ohio, 438 U.S. 586 (1978). In Lockett the defendant, another look-out for a robbery, argued that her death sentence was
4

Case 1:00-cr-00531-WYD

Document 1863

Filed 08/10/2006

Page 5 of 9

invalid because the statute under which it was imposed did not permit the sentencing judge to consider, as mitigating factors, her character, prior record, age, lack of specific intent to cause death, and her relatively minor part in the crime. The Court agreed and reversed her sentence. The Lockett Court noted that it was addressing an issue left open by Woodson, that is, which facets of an offender or his offense are `relevant' and what degree of consideration should be required of them. It "conclude[d] that the Eighth and Fourteenth Amendments require that the sentencer, . . . not be precluded from considering as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Id. at 604 (emphasis in the original). Further: [A] statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant's character and record and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty. When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments. Id. at 605 (emphasis added). The principles of Lockett have been reconfirmed in Eddings v. Oklahoma,455 U.S. 104(1982) and Penry v. Lynaugh, 492 U.S. 302 (1989). Thus the concept of "particularized" sentencing relates to a defendant's constitutional right to present mitigation, be it regarding the circumstances of the charged offense or his character and record. It does not support the argument that there are no
5

Case 1:00-cr-00531-WYD

Document 1863

Filed 08/10/2006

Page 6 of 9

restraints on the government's ability to present aggravation. This distinction was recognized in a case proceeding under the Federal Death Penalty Act, United States v. Davis, 912 F. Supp.938 (E.D. La. 1996). The Davis court wrote that "even though virtually no limitation can be placed on proffered mitigation evidence, limitations can and should be placed on proffered aggravation evidence to assure the death sentence is not arbitrarily imposed." Id. at 944 n.9 (emphasis in original). This Court's ruling also relies on one Fourth Circuit decision, United States v. Higgs, 353 F. 3d 281 (4th Cir. 2003) and two district court decisions, United States v. Rodriquez, 2006 WL 487117 (D.N.D. Feb. 28, 2006) and United States v. Chong, 98 F. Supp. 2d 1110 (D. Hawaii 1999). Two distinguishing aspects of these cases must be noted. In both Higgs and Rodriguez the question presented was limited to the extent of evidence relating to a prior-conviction statutory aggravating factor, whereas William seeks limitation as to both the alleged statutory aggravating factor and the alleged nonstatutory aggravating factor. Additionally in Higgs, the evidence presented that went beyond the elements of the offense of conviction was limited to the plea colloquy. Id. at 316. If properly authenticated, this court record was reliable evidence; more reliable than a witness presentation of the underlying facts of the criminal episode. All three cases, however, relied upon the concept of particularized sentencing in their refusal to adopt a categorical approach to the use of prior convictions. And they did so summarily: ". . . the [Supreme] Court has made it clear that an individualized determination is required in the death penalty context", Id. at 317 (emphasis in original);
6

Case 1:00-cr-00531-WYD

Document 1863

Filed 08/10/2006

Page 7 of 9

so limiting the government would be "contrary to the Supreme Court's mandate to particularize capital sentencing proceeding", Rodriguez, at *2; the categorical approach "do[es] not consider the Supreme Court's mandate to particularize capital sentencing proceedings", Chong, 98 F. Supp. 2d at1121. The cases therefore do not reflect a thorough analysis of the Supreme Court's historical use of that term. When that history is considered, it becomes clear that a categorical approach is the most relevant and reliable way to proceed. 3. The government's second argument on this issue is that "[l]imiting the government's proof to the fact of conviction is also at odds with the government's ability to introduce evidence of unadjudicated criminal conduct during the penalty phase." (Document 1729 at 4). This Court has seemingly adopted that position, although not as it relates to any specific prior conviction, stating that "[i]t is illogical that courts would allow evidence of unadjudicated criminal conduct, which necessarily requires introduction of the facts (since there is no conviction), and not allow in the facts in connection with an actual conviction." (Document 1836 at 24). The concepts, however, are not equivalent. Cf. Davis, 912 F. Supp. at 944 (discussing the potentially inflammatory evidence of unadjudicated criminal conduct versus "the dry paperwork used to establish an actual conviction"). When a capital jury is presented with evidence of unadjudicated criminal conduct, it will be assessing it for the first time. That is not true regarding conduct underlying prior convictions. The criminal episode that resulted in a prior conviction has been
7

Case 1:00-cr-00531-WYD

Document 1863

Filed 08/10/2006

Page 8 of 9

assessed. As is true in relation to the prior convictions alleged in this case, many of the underlying facts were deemed irrelevant to a fair resolution of the case. Limiting the government to the fact of conviction, rather than allowing it to revisit the entire underlying criminal episode way after it occurred, is the most reliable way of assessing the defendant's criminal history, because it incorporates the contemporaneous assessments of the prosecutor and the judge in cases where plea bargains were entered and of the jury where convictions came after a trial. There are no good reasons ­ including "particularized" sentencing ­ to have a capital jury reassess criminal episodes that have resulted in convictions. This is particularly true where to do so would deny the defendant the benefit of a plea agreement. The Court wisely has left the benefit-of-thebargain aspect of the issue open for further consideration. (Document 1836 at 25). WHEREFORE, William respectfully requests the Court to reconsider its ruling regarding the extent to which the government can revisit prior convictions by presenting evidence of underlying conduct, whether such conduct was relevant to the ultimate resolution of the case or not. Dated: August 10, 2006 Respectfully submitted, Patrick J. Burke Patrick J. Burke P.C. 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 Nathan Chambers Chambers, Dansky & Mulvahill 1601Blake Street, Suite 300 Denver, CO 80202 303-825-2222

8

Case 1:00-cr-00531-WYD

Document 1863

Filed 08/10/2006

Page 9 of 9

By: /s/ Susan L. Foreman Susan L. Foreman 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 Counsel for William Sablan

CERTIFICATE OF SERVICE I hereby certify that on August 10, 2006 I electronically filed the foregoing William Sablan's Motion For Reconsideration Of The Court's Ruling Allowing The Government To Present Evidence Of Underlying Conduct Relating To Prior Convictions 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] [email protected] [email protected] [email protected] By: /s/Susan L. Foreman

9