Free Reply - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 2142

Filed 01/13/2007

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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 REPLY BRIEF IN SUPPORT OF ITS MOTION IN LIMINE TO PRECLUDE DEFENDANT 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, replies as follows to William Sablan's Response to the Government's Motion in Limine to Preclude Defendant Family Impact Evidence. 1. The defendant's response brief fails to explain 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.) If mitigation evidence is not "probative of an enumerated mitigating factor, especially some aspect of the defendant's character," United States v. McVeigh, 153 F.3d 1166, 1215 (10 th Cir. 1998), it is not relevant to the penalty phase.

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2. 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. That is the situation here. a. Coleman v. Saffel, 869 F.2d 1377, 1393 (10 th Cir. 1989) ­ The court held that, in the penalty phase, 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." 1 Id. b. 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) ­ The issue before the court in Robison was whether the testimony of a victim's relative who did not wish the death sentence imposed was relevant to the issue of mitigation. In rejecting the evidence's relevance to the penalty phase, the court noted that an "individual's personal opinion of how the sentencing jury should acquit its responsibility ... relates to neither the character or record of the defendant nor to the circumstances of the offense." 2 Id.
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By contrast, testimony from family members that the defendant loves and cares for them would be relevant since it is probative of the defendant's character. The fact that Robison cited Booth v. Maryland, 482 U.S. 496 (1987), which the Supreme Court overruled in Payne v. Tennessee, 501 U.S. 808 (1991), is not material to the holding since the court applied the exact same relevance standard as that contained in the Federal Death Penalty Act, namely, "the persona of the defendant or [] the fabric of the crime of which he has been convicted." 829 F.2d at 1505. Moreover, the court in 2
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3. The defendant's brief fails to acknowledge the unusual nature of its proposed family impact evidence. The defendant has endorsed Dr. Frank Fortunati to present a psychiatric history of each of the defendant's children and then to testify about mental disorders that the children are likely to suffer if their father is executed. Such testimony 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. 4. The Tenth Circuit has held that the defendant's family's feelings toward the defendant are irrelevant to the penalty phase because that evidence does not relate to the defendant's character. Coleman v. Saffel, 869 F.2d 1377, 1393 (10 th Cir. 1989). Given that ruling, how is evidence that William Sablan's children will suffer psychologically from his execution relevant to the defendant's character? The defendant never explains.3 Coleman and Robison reinforce what the Federal Death Penalty Act, 18 U.S.C.

United States v. Brown, 441 F.3d 1330, 1351 n.8 (8 th Cir. 2006), recently agreed with Robison that it was "immaterial that a family member's opinion would have been offered in opposition to the death penalty." Breaking the link between the defendant's character and relevant mitigation evidence poses a risk of allowing a great deal of otherwise extraneous information. For example, could a defendant call anti-death penalty advocates to testify about the effect executions have on the psyche of their members? Could a defendant who is not from the United States call government officials from his country to testify about the harm to foreign relations his execution would cause? Disassociating mitigating evidence from the defendant's character will have the effect of "reducing the trial to a contest of irrelevant opinions." Robison, 829 F.2d at 1504. 3
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§ 3592(a)(8), makes clear ­ relevant mitigation evidence relates to the defendant, not to third parties. 5. The defendant cites United States v. Fell, 2005 WL 1634067 (D. Vt. July 5, 2005), in support of his position, but fails to note the court's most pertinent holding: "[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. Respectfully submitted this 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 4 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 13th day of January, 2007.

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CERTIFICATE OF SERVICE I hereby certify that on this 13th day of January, 2007, I electronically filed the foregoing GOVERNMENT'S REPLY BRIEF IN SUPPORT OF ITS MOTION IN LIMINE TO PRECLUDE DEFENDANT FAMILY IMPACT EVIDENCE with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email 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]

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