Free Response to Motion - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 2645

Filed 11/13/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Criminal Case No. 00-cr-00531-WYD UNITED STATES OF AMERICA, Plaintiff, v. RUDY CABRERA SABLAN, et al. Defendant. ______________________________________________________________________________ RESPONSE OF RUDY SABLAN TO GOVERNMENT'S MOTION TO RECONSIDER CRAWFORD RULING OF FEBRUARY 26, 2007 ______________________________________________________________________________ Rudy Sablan, by and through counsel, responds as follows to the government's motion to reconsider the Court's ruling regarding the applicability of Crawford v. Washington to penalty phase evidence. (Docket #2301, 2/26/07.) In its order dated February 26, 2007, the Court carefully and extensively evaluated this issue and ruled that the Confrontation Clause as interpreted by Crawford is applicable to the penalty phase. The Court also rejected the government's suggestion to bifurcate the penalty hearing. The government's request for reconsideration is based on United States v. Fields, 483 F.3d 313 (5th Cir. 2007). The Fields court relied heavily upon Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079 (1949), a case decided 58 years ago under a due process analysis. The court in Fields acknowledged that Williams did not address the issue under the Sixth Amendment Right of Confrontation. Williams was a state case and the Sixth Amendment had not even been held to be applicable to the states at that time. The Fields court downplayed the role of non-

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statutory aggravating factors, observing that they were neither necessary nor sufficient to impose a death sentence. The Fields jury found two statutory aggravating factors prior to considering non-statutory factors. In this case, there is only one possible statutory aggravating factor and it is questionable, at best. The role of non-statutory factors is pivotal to Rudy Sablan. Judge Benavides' dissenting opinion in Fields is a far more scholarly and logical analysis of this issue. As he notes, confrontation clause analysis and sentencing analysis have changed significantly in recent Supreme Court decisions. (Citing Crawford, United States v. Booker, 543 US 220 [2005], and Blakely v. Washington, 542 US 961 [2004].) He concludes that it is "somewhat surprising that the majority relies so heavily on Williams v. New York, a due process case decided nearly sixty years ago that has been repeatedly limited by subsequent cases." Fields, supra, at 364. The Fields opinion, from a sharply divided court, is not binding on this Court and has very questionable viability in any event. This Court wrote a logical and scholarly opinion on this issue in Williams Sablan's case. The Court's reliance on United States v. Mills, 446 F.Supp.2d 1115 (C.D. Cal. 2006), was wellplaced. The Court should adhere to its decision on this issue. Bifurcation does not avoid the Confrontation Clause because, as the Court ruled, "the existence of all the aggravating factors are constitutionally significant facts that should be found by a jury." (Docket #2301, p. 20.) Legal scholars and commentators who follow historical as well as current jurisprudence confirm the constitutional wisdom of Mills and the opinion of this Court in William Sablan. The most recent and comprehensive analysis of this issue is an article written by Professor Penny J. White of the University of Tennessee College of Law in the Regent University Law Review. "He Said," "She Said," And Issues of Life and Death: The Right to

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Confrontation at Capital Sentencing Proceedings, 19 Regent U. L. Rev. 387 (2007). Some of the main points in the article are summarized here. The entire article is attached for the Court's review because of its comprehensive, scholarly review of hundreds of cases and years of history relevant to this critical issue. At the time the Sixth Amendment was adopted guilt and sentencing were determined by the jury in a single, non-bifurcated proceeding. The amendment applied to all guilt and sentencing issues. Circumstances at the time the amendment was adopted was the time of critical importance to the analysis in Crawford. It should, then, be of critical importance in sentencing context. In order to exercise the awesome decision of life or death in a constitutional, responsible manner, ". . . those asked to impose this ultimate sentence must be provided with reliable evidence. They should not be expected to decide whether a defendant should be sentenced to life or death based on evidence that has not been subjected to challenge or confrontation." Id., at 401. Noting the pervasive jurisprudence that "death is different" and requires heightened standards of fairness and reliability, Professor White concludes that: These heightened standards of fairness and reliability apply not only to the determination that the defendant committed an offense punishable by death (eligibility) but also, perhaps even more, to the determination that the defendant deserves a sentence of death (selection). Id., at 420, emphasis and parenthetical comment added. As to Williams, Professor White observes that "subsequent cases and other constitutional developments have significantly undermined the court's reasoning in Williams, leaving it, at best, diluted." Id. 3

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Turning to the implications in Crawford, Professor White notes that Crawford and Davis dealt with guilt-phase confrontation but that, . . . [T]he recognition of the absolute procedural demands of the right to confrontation, together with reliance on the nature of criminal proceedings at the time of the framing of the Sixth amendment, exact the conclusion that the right to confrontation applies equally to testimonial statements offered at a capital sentencing proceedings. . . . Determining the accuracy and reliability of sentencing information is no less important than determining the accuracy and reliability of information related to guilt. The best mechanism for assessing reliability is confrontation. Id., at 424. Rudy Sablan agrees with the final conclusion of Professor White on this issue: Neither the Constitution's text, its history, nor interpretive precedent provide a reasoned basis for denying a person facing death the right to confront the witnesses at a capital sentencing hearing. On the contrary, the text, the history, and a half-century of constitutional development mandate that the Sixth Amendment right to confrontation be given full effect in the most significant of criminal prosecutions, the capital sentencing proceeding. Id., at 428. The Court should adhere to its previous ruling on this issue and deny the government's motion to reconsider. Respectfully submitted, s/ Forrest W. Lewis Forrest W. Lewis FORREST W. LEWIS, P.C. 1600 Broadway, Suite 1525 Denver, Colorado 80202 Telephone: (303) 830-2190 Facsimile: (303) 830-1466 E-mail: [email protected]

Donald R. Knight KNIGHT & MOSES, LLC 7852 S. Elati Street, Suite 201 Littleton, Colorado 80120 Telephone: (303) 797-1645 Facsimile: (303) 798-3872 E-mail: [email protected] Attorneys for Defendant Rudy Sablan

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CERTIFICATE OF SERVICE I hereby certify that the foregoing RESPONSE OF RUDY SABLAN TO GOVERNMENT'S MOTION TO RECONSIDER CRAWFORD RULING OF FEBRUARY 26, 2007, was electronically filed with the Clerk of the Court using the CM/ECF system on this 13th day of November, 2007, which will send notification of such filing to the to the following e-mail addresses: Brenda Taylor [email protected] Philip Brimmer [email protected]

s/Polly Ashley

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