Free Response to Motion - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 1:00-cr-00531-WYD UNITED STATES OF AMERICA, Plaintiff, v. WILLIAM CONCEPCION SABLAN, Defendant. ________________________________________________________________________ William Sablan's Response to the Government's Motion in Limine to Preclude Family Impact Evidence ________________________________________________________________________ Defendant William Sablan, through undersigned court-appointed counsel, submits this response to the "Government's Motion In Limine To Preclude Defendant Family Impact Evidence." (Document 2104). Mitigating Evidence under the Eighth Amendment 1. As mandated by the Eighth Amendment, the concept of relevant mitigating evidence is a broad one. (a) In Woodson v. North Carolina, 428 U. S. 280 (1976), the Supreme Court held that statutes making the death penalty mandatory are unconstitutional, because defendants are entitled to an individualized sentencing determination, stating: . 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
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from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death. Id. at 304. (b) The Court provided a more detailed description of defendants' right to an individualized sentencing determination in Lockett v. Ohio, 438 U.S. 586, 604 (1978). There the Court wrote that "the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, 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." This is to avoid 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. (c) Since Lockett, the Court has reversed death sentences due to lower courts' failure to honor defendants' right to present mitigating evidence. See Skippers v. South Carolina, 476 U.S. 1 (1986) (death sentence reversed because trial court had excluded evidence that the defendant had adjusted well to prison life believing it was irrelevant to mitigation evidence); Eddings v. Oklahoma, 454 U.S.155 (1984) (reversing death sentence due to judge's belief it was precluded, as a matter of law, from considering the defendant's troubled childhood and emotional disturbance).
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(d) In McKoy v. North Carolina, 494 U.S. 433, 441 (1990), the Court observed that its "holdings in Skipper . . . and Eddings . . .show that the mere declaration that evidence is `legally irrelevant' to mitigation cannot bar the consideration of that evidence if the sentencer could reasonably find that it warrants a sentence less than death". (e) More recently, the Court has reversed death sentences in Rompilla v. Beard, 545 U.S. 374 (2005), Wiggins v. Smith, 539 U.S. 510, 524 (2003), and Williams v. Taylor, 529 U.S. 362 (2000) due to counsel's failure to investigate and/or present potential mitigating evidence. Thus, it is clear that the concept of mitigating evidence is broad and the defendant's right to present it is firmly established. 2. Consistent with the authority just discussed, the Federal Death Penalty Act ("FDPA") establishes a broad "catch-all" mitigating factor in 18 U.S.C. § 3592(a)(8). In addition to evidence supporting a statutory mitigating factor, subsection (8) allows the defendant to present "[o]ther factors in the defendant's background, record, or character or any other circumstance of the offense that mitigate against imposition of the death sentence." The Government's Motion 3. Nonetheless, in the instant case, the government contends that the defense should be precluded from presenting the testimony of Dr. Fortunati and/or William's children regarding the adverse effect William's execution would have on his family, on
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the grounds that it is "not proper mitigating evidence." (Gov Mtn ¶ 4). It claims such evidence "would shift the focus of the proceedings away from the character of the defendant and improperly confuse the issues before the jury." (Gov Mtn ¶ 2). It even goes so far as to assert that William's "family or friends" cannot testify "that they love the defendant or oppose imposition of the death penalty . . .." (Gov Mtn ¶ 3). 4. The government has failed to cite any federal death-penalty case in support of its position. 5. In fact, execution or family-impact evidence has been admitted in many federal death-penalty cases. Attached hereto is the Declaration of Kevin McNally, Federal Death Penalty Resource Counsel, which lists a multitude of cases in which execution-impact evidence has been presented to the jury. As a result, the issue has generated little federal caselaw. Counsel, however, did locate a relevant unpublished Memorandum and Order issued in United States v. Fell, 2005 WL 1634067 (D. Vt. July 5, 2005). (A copy is attached.) 6. In Fell, the government moved to strike the following mitigating factor alleged by the defendant: "Donald Fell's execution would detrimentally affect persons who care about him." Id. at *1. Noting that the "Supreme Court applies a broad relevance standard to mitigating evidence", the court denied the government's motion. Id. (citing McCoy, 494 U.S. at 440-41). It concluded that "[t]hird party impact testimony may shed light on Fell's background and character by providing testimony about any `positive qualities,' `his capacity to be of emotional value to others' and the nature of his interpersonal
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relationships." It was therefore admissible. Id. at *2. 7. Noting the lack of federal caselaw on the issue, the Fell court found support in three state cases. See People v. Ochoa, 966 P.2d 442, 456 (Cal. 1998) (holding that "family members may offer testimony of the impact of an execution on them if by so doing so they illuminate some positive quality of the defendant's background or character"; said another way, the defendant may present evidence "that he or she is loved by family members or others, and that these individuals want him or her to live . . . because it constitutes indirect evidence of the defendant's character");1 Oregon v. Stevens, 879 P.2d 162, 167-68 (Or. 1994) (en banc) (trial court erred by excluding wife's testimony about the adverse effect the defendant's execution would have on his daughter; it was circumstantial evidence of defendant's character or background for a rational juror could infer that there are positive aspects about their relationship that demonstrate that the defendant "has the capacity to be of emotional value to others"); Noel v. State, 960 S.W.2d 439, 446 (Ark. 1998) (defendant's mother was allowed to introduce photos of the defendant and to offer testimony about his kind character to emphasize the loss associated with his execution).2
In Ochoa, the had defendant argued that the trial court erred by refusing to instruct the jury it could consider sympathy for his family in mitigation. The court rejected the argument, but its holding included how and why family impact evidence can be properly be admissible. Although not tied to mitigating evidence, the government was allowed to present thirdparty impact evidence in the FDPA case United States v. Battle, 173 F.3d 1343, 1348 (11th Cir. 1999). Battle involved the murder of a prison guard by an inmate. At the sentencing hearing three prison guards testified regarding the adverse impact a life, as opposed to death, sentence would have on the inmates and staff members at the prison. The Eleventh Circuit found no error. 5
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8. The premise that adverse family impact is relevant to the defendant's background and character and to the determination of the appropriate sentence is supported by the analysis in Payne v. Tennessee, 501 U.S. 808 (1991). In Payne, the Court held that there is no Eighth Amendment barrier to the admission of victim-impact evidence, that is, evidence reflecting that "the victim [was] an individual whose death represents a unique loss to society and in particular to his family." Id. at 825. Moreover, victim impact evidence "is designed to show . . . each victim's uniqueness as an individual human being, whatever the jury might think the loss to the community resulting from his death might be." Id. at 823. Given that it is undisputed that the defendant is entitled to individualized sentencing, it logically follows from Payne that adverse family impact that would result from the defendant's execution is relevant to his "uniqueness as a human being." 9. The habeas appeals cited in the government's motion are not persuasive authority for its position: (a) Coleman v. Saffle, 869 F.2d 1377 (10th Cir. 1989). In Coleman, the petitioner argued that the trial court's anti-sympathy instruction unconstitutionally diverted the jury from fully considering mitigating evidence. Although the Tenth Circuit agreed that the instruction was unconstitutional under prior precedent, it found that "[t]he basic problem with Coleman's anti-sympathy instruction argument in the instant case is that he introduced no mitigating evidence at the penalty phase of his trial." Id. at 1391 (emphasis in original). Instead, he relied on the testimony of his wife and sister-in-law
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during the guilt/innocence phase in which each of them stated that they loved the defendant. The Court held that these statements did not "qualify as `relevant mitigating evidence' on which a jury legitimately might have grounded feelings of sympathy." Id. at 1393. "And even if the statement of love implies some good character traits it does not identify what they are. Thus, we hold that the statements here do not constitute `relevant mitigating evidence' on which a jury could base sympathy." Id. (b) Robison v. Maryland, 829 F.2d 1501 (10th Cir. 1987). Before commencing the penalty phase, the state moved for an order instructing witnesses "not to express any kind of an opinion, to be asked any kind of question or express any kind of opinion as to whether or not they feel the death penalty should be imposed." Id. at 1504. Defense counsel responded that he was inclined to call relatives of the victims, who had expressed to him a desire to ask the jury not to impose the death penalty in this case. The court granted the state's motion. On appeal, the petitioner argued that the refusal of this testimony deprived him of due process. He asserted that because one of the reasons underlying imposition of the death penalty is the sanction of retribution, "testimony of a family member of the victim urging the jury to reject the death penalty would have been strong evidence mitigating that sanction." Id. at 1504. The court held that such opinion evidence did not constitute relevant mitigating evidence. In so holding, it noted that "the Supreme Court has recently underscored the need for narrowing the scope of the evidence affecting the sentencing decision by preventing the state from disclosing the impact the crime has on the victim's surviving relatives." Id. at 1505 (citing Booth v. Maryland, 482
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U.S. 496 (1987)). (emphasis added). It concluded that Booth was equally applicable to the case before it. Booth, however, was subsequently reversed by Payne v. Tennessee, 501 U.S. 808 (1991). (c) United States v. Brown, 441 F.3d 1330 (8th Cir. 2006); Reese v. Delo, 94 F.3d 1177 (8th Cir. 1996). Both of these Eighth Circuit cases involved Brady v. Maryland, 373 U.S. 83 (1963), claims based upon the state's failure to disclose to the defense that relatives of the victims opposed imposition of the death penalty. Both claims were denied. 10. In addition to the state cases cited by the Fell court, the following are state cases in which evidence of the impact that a defendant's execution would have on third parties has been admitted: Richmond v. Lewis, 506 U.S. 40, 43 (1992) (recognizing Arizona's practice of accepting evidence "of the effect [defendant's] execution would have upon his family" as mitigation evidence"); State v. Manning, 885 So.2d 1044, 1098 (La. 2004) (error to sustain state's objections to defense counsel asking defendant's mother and sister if they wanted the jury to spare his life); State v. Cauthern, 967 S.W.2d 726, 738-39 (Tenn. 1998) (error to exclude letter from son to his father offered as mitigation by defense, noting "[t]hat defendant's family and young son who have expressed love and support are arguably relevant to the defendant's background and character, and a potential basis upon which a juror could decline to impose the death penalty"); State v. Mann, 934 P.2d 784 (Ariz. 1997) (noting that court weighed as a mitigating factor the defendant's relationship with his children and the effect on them if
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he were executed); State v. Williams, 679 N.E.2d 646 (Ohio 1997) (noting that defendant's daughter testified that she loved him, would maintain contact with him, and did not want anything bad to happen to him); State v. Simmons, 944 W.S.2d 165, 187 (Mo. 1997) (noting that defense counsel argued the fact that defendant's family wanted him to stay alive was mitigating); People v. Stanley, 897 P.2d 481, 519 (Cal.1995) (assuming but not deciding that it is constitutional error to forbid defendant from inquiring of defense witnesses as to whether they want the defendant executed); State v. Fox, 631 N.E.2d 124, 127 (Ohio 1994) (admitting evidence that defendant was calming influence on other inmates at the jail for purpose of allowing defendant to argue that his execution would have an adverse effect on prison community and noting that judge on intermediate appellate court found the likely impact of execution on defendant's children to be a mitigating circumstance); Cardona v. State, 641 So.2d 361, 365 (Fla. 1994) (allowing defendant to call her children in mitigation and to argue that it would be better for them were she not executed); Romaine v. Stevens, 305 S.E.2d 93 (Ga. 1983) (finding error where the defendant, who murdered his parents, was not allowed to present the testimony of his grandfather that he did not wish his grandson to be executed). 11. As the Supreme Court said in Penry v. Lynaugh, 492 U.S. 302, 328 (1989), "[r]ather than creating the risk of an unguided emotional response, full consideration of evidence that mitigates against the death penalty is essential if the jury is to give a reasoned moral response to the defendant's background, character, and crime." (internal citation omitted) (emphasis added). Execution-impact evidence allows jurors to see that
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the life they may decide to take, perhaps has had, and perhaps will continue to have, some positive effect on others, so they can assess the aggregate harm that will ensue from their decision to impose death . The murder victim, after all, is not the only casualty of the capital punishment process. As such, execution-impact evidence is critical to the jury's reasoned moral response. WHEREFORE, William Sablan respectfully requests that the Court deny the government's motion. Dated: January 12, 2007 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

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 January12, 2007, I electronically filed the foregoing William Sablan's 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] [email protected] [email protected] By: /s/Susan L. Foreman

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