Free Order on Motion for Discovery - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 2113

Filed 01/04/2007

Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Wiley Y. Daniel Criminal Case No. 00-CR-531-WYD UNITED STATES OF AMERICA, Plaintiff, v. WILLIAM SABLAN, et al., Defendants.

ORDER

THIS MATTER is before the Court on Defendant William Sablan' Renewed s Motion for Further Discovery Regarding Racial Disparity in Cases Submitted for Possible Death Penalty Authorization filed December 12, 2005 (docket #1629) (the " renewed motion" ). By way of background, I note that Defendant William Sablan is charged with first-degree murder in the death of Joey Estrella, which occurred in a federal penitentiary in Florence, Colorado, on October 10, 1999. On May 1, 2001, the Government filed a Notice of Intent (" NOI" to seek the death penalty pursuant to the ) Federal Death Penalty Act (" FDPA" 18 U.S.C. §§ 3591-3596, as to Defendant William ), Sablan and his co-defendant, Rudy Sablan. In March and April of 2001, Defendant William Sablan requested information from the Government regarding all homicides that occurred within the Bureau of Prisons facilities from September 13, 1994 (the date the FDPA became effective) to present in order to raise a selective prosecution

Case 1:00-cr-00531-WYD

Document 2113

Filed 01/04/2007

Page 2 of 8

defense. Defendant requested information regarding (1) the race of the victim; (2) the race of the perpetrators; (3) what charges resulted from the homicide; (4) whether the case was submitted to the Department of Justice for possible death penalty authorization; and (5) the recommendation of the submitting United States Attorney regarding the death penalty. The Government opposed production of the last two pieces of information and Defendant filed a motion to compel. I granted the motion to compel in part and ordered the Government to provide information concerning whether, as to the homicides at issue, a death penalty evaluation form was submitted to the Department of Justice. I denied the portion of the motion seeking to compel information regarding the United States Attorney' recommendation regarding the death penalty s holding that the substance of such recommendation is protected by the work-product and deliberative-process privileges. In June and July of 2001 the Government produced a list of BOP homicides that occurred within the specified time-frame (including information as to the date of the homicide, where the homicide occurred, and the race of the victim and perpetrator, and whether a death penalty evaluation form was submitted to DOJ). According to the information supplied by the Government, between September 13, 1994, and June 4, 2001, 43 inmate-on-inmate homicides occurred in BOP facilities. Eleven of the 43 homicides were submitted to the DOJ for possible death penalty authorization. Utilizing this information, Defendant filed his initial motion for further discovery regarding racial disparity in cases submitted for possible death penalty authorization on -2-

Case 1:00-cr-00531-WYD

Document 2113

Filed 01/04/2007

Page 3 of 8

December 3, 2001. In that motion he asserted when a BOP inmate is killed by another inmate, federal prosecutors seek authority from the DOJ for the death penalty more often if the victim is White than if the victim is Black, in violation of the Equal Protection Clause of the Fourteenth Amendment. For purposes of the motion, Defendant defined " White"as non-African American and " Black"as African American. Based on this definition, Defendant asserted that of the eleven homicides submitted to the DOJ for possible death penalty authorization, nine (82%) involved White victims, and two (18%) involved Black victims. In addition, Defendant noted that thirteen of the 16 homicides involving Black victims were not submitted for death penalty authorization. Defendant requested information concerning the charges filed in each of the 43 " inmate-oninmate"cases and sought the following information regarding the 13 cases involving Black victims which were not submitted for death penalty authorization: the circumstances of the offense, the charges resulting from the offense, and the length of the sentence being served by defendant(s) at the time of the offense. I denied Defendant' initial motion for further discovery by Order dated October s 20, 2003. In that Order I noted that a defendant who is seeking to pursue a selective prosecution claim is entitled to discovery only if the defendant presents "some ` evidence tending to show the existence of the essential elements of the [selectiveprosecution] defense, discriminatory effect and discriminatory intent.' United States v. " James, 257 F.3d 1173, 1178 (10th Cir. 2001) (quoting United States v. Armstrong, 517 U.S. 456, 470 (1996)). I found that while Defendant presented some evidence of the disproportionate application of the death penalty with respect to a victim' race, he s -3-

Case 1:00-cr-00531-WYD

Document 2113

Filed 01/04/2007

Page 4 of 8

failed to present any evidence tending to show that similarly-situated individuals were not selected for death penalty prosecution. I noted that Defendant had failed to establish whether the 13 cases involving Black victims where the death penalty was not recommended involved capital crimes and concluded that without more information as to the nature of the other 43 prison homicides, it was impossible to determine whether any of the defendants in those 43 cases was similarly situated to Defendant in this case. During the week of December 5, 2005, the Court held a hearing concerning Defendants' objections to the NOIs as well as Defendants' constitutional challenges to various provisions of the FDPA. At the hearing Defendant presented additional evidence concerning his selective prosecution claim. Utilizing information previously obtained, Defendant created a chart summarizing data regarding the 43 prison homicides at issue including the total number of cases involving White victims submitted for possible death penalty authorization and the total number of cases involving Black victims submitted for possible death penalty authorization. See Defendant' Exhibit D. Defendant then called Professor Michael Radelet to testify s concerning the information summarized in the chart. Professor Radelet testified that " a researcher, I' say, well, gee, why is it that given, you know, pretty similar [a]s d homicides, they' all inmate-on-inmate homicides, there' some pretty homogeneous re s group, why is it within that group, the death penalty is sought so much more often when a white person is killed than when a black person is killed . . . ." Professor Radelet further testified that in order to rule out racial bias he would need additional information -4-

Case 1:00-cr-00531-WYD

Document 2113

Filed 01/04/2007

Page 5 of 8

concerning aggravating and mitigating circumstances surrounding all 43 homicide cases (such as criminal records of victim and perpetrator, mental illness, age, IQ, circumstances of the crime including torture, postmortem disfigurement, efforts to conceal, etc., alcohol use, etc.). According to Professor Radelet, he could use this information to assess whether or not the homicides involving White victims were indeed more aggravated than the homicides involving Black victims. Following the hearing, Defendant filed his renewed motion for further discovery. In the renewed motion Defendant submitted brief factual summaries of the eleven homicide cases (9 White victims, 2 Black victims) submitted for death penalty evaluation as well as summaries of the thirteen cases involving Black victims that were not submitted for death penalty evaluation. Defendant contends that this information, combined with the testimony of Professor Radelet, sufficiently demonstrates for purposes of obtaining further discover, that BOP homicide defendants whose victims were Black did not have their cases submitted for possible death penalty authorization, while the cases of similarly-situated defendants whose victims were White were submitted. I find that Defendant has still not demonstrated that he is entitled to further discovery on the issue of racial disparity. As discussed above, a defendant who is seeking to pursue a selective prosecution claim is entitled to discovery only if the defendant presents "some evidence tending to show the existence of the essential ` elements of the [selective-prosecution] defense, discriminatory effect and discriminatory intent.' United States v. James, 257 F.3d 1173, 1178 (10th Cir. 2001) " -5-

Case 1:00-cr-00531-WYD

Document 2113

Filed 01/04/2007

Page 6 of 8

(quoting United States v. Armstrong, 517 U.S. 456, 470 (1996). In order to show the existence of discriminatory effect in a selective prosecution claim based on the race of the defendant, a defendant must " make a credible showing that a similarly-situated individual of another race could have been prosecuted for the offense for which the defendant was charged, but was not." James, 257 F.3d at 1179. Here, however, Defendant' selective prosecution claim is based on the victim' race. Defendant seeks s s to show that the death penalty is sought more often in homicide cases where the victim is " White"than in cases where the victim is " Black." Essentially, Defendant seeks to demonstrate that the decision to seek the death penalty in his case was impermissibly based on the fact that his victim was " White." The chart and case summaries provided by Defendant concerning the 11 cases in which death penalty evaluation forms were submitted and the 13 cases involving Black homicide victims in which death penalty evaluation forms were not submitted contain only a one or two sentence summary of the circumstances surrounding the homicide at issue. Defendant still has not established whether the 13 cases involving Black victims where the death penalty was not recommended were capital crimes. The case summaries do not demonstrate that Defendant is similarly situated to defendants whose homicide victims were Black, or whether Defendant is similarly situated to the defendants in the nine cases involving White victims that were submitted for death penalty authorization. An additional problem with Defendant' renewed motion for discovery stems s from his characterization of the victim in this case as " White." As discussed above, -6-

Case 1:00-cr-00531-WYD

Document 2113

Filed 01/04/2007

Page 7 of 8

Defendant' selective prosecution claim is based on his assertion that homicides s involving " White"victims are more likely to result in death penalty authorization, in violation of the Equal Protection Clause. The victim' race in this case is in dispute. s Defendant provided evidence in the form of an Internet search result from the BOP, in which the BOP classified the victim as " White." However, the victim has an Hispanic sur-name and the Government argues that the victim was Hispanic. The list of BOP homicides produced by the Government and utilized by Defendant as Exhibit A to his initial motion for discovery classifies the victim, Joey Estrella, as Hispanic. The statistical information assembled by Defendant does not differentiate between Caucasian and Hispanic victims, and classifies all non-African American victims as " White." As noted by the Government, a portion of Professor Radelet' testimony at the s December, 2005, hearing concerned a study in California which demonstrated that homicides involving Hispanic victims were even less likely to result in authorization of the death penalty than those involving African American victims. I agree with the Government that is it misleading to classify all non-African American victims as " White" for purposes of Defendant' selective prosecution claim. s In conclusion, I find that Defendant has failed to make a credible showing that he is similarly situated to defendants who were not selected for death penalty prosecution, nor has he made a credible showing of discriminatory intent in this case. See United States v. Bass, 536 U.S. 862 (2002). Therefore, it is hereby ORDERED that Defendant William Sablan' Renewed Motion for Further s Discovery Regarding Racial Disparity in Cases Submitted for Possible Death Penalty -7-

Case 1:00-cr-00531-WYD

Document 2113

Filed 01/04/2007

Page 8 of 8

Authorization filed December 12, 2005 (docket #1629) is DENIED. Dated: January 4, 2007 BY THE COURT: s/ Wiley Y. Daniel Wiley Y. Daniel U. S. District Judge

-8-