Free Motion in Limine - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 2104

Filed 01/02/2007

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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 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, moves the Court to preclude William Sablan from introducing evidence of the impact that the defendant's execution would have on his family. 1. On December 18, 2006, the defendant notified the government that he may call in the liability or penalty phase Dr. Frank Fortunati, a psychiatrist, who met with the defendant in 2003 and 2005. On December 18, 2006, the government received two new reports by Dr. Fortunati, dated December 16, 2006. One report is three pages long and relates to meetings that Dr. Fortunati had with William Sablan in September 2005. The other report is 25 pages long and relates to William Sablan's children. Dr. Fortunati concludes this report by stating that the loss of the children's connection with their father

Case 1:00-cr-00531-WYD

Document 2104

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would place the children at risk of psychiatric disorders and adversely affect the cognitive development of the younger children. 2. The Federal Death Penalty defines mitigating factors as "factors in 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). Mitigation evidence, however, does not include the impact of any death sentence on other people, such as the defendant's family, since that evidence would shift the focus of the proceedings away from the character of the defendant and improperly confuse the issues before the jury. 3. Nor is testimony from the defendant's family or friends that they love the defendant or oppose imposition of the death penalty proper mitigation evidence. For instance, in Coleman v. Saffel, 869 F.2d 1377, 1393 (10 th Cir. 1989), the court held that evidence that the defendant's family loved him "in no way concerned any aspect of his `character or record and any of the circumstances of the offense.'" (Quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978).) In Robinson v. Maryland, 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 court held that testimony of a relative of the victim urging the jury to reject the death penalty was not relevant mitigating evidence. See also United States v. Brown, 441 F.3d 1330, 1351 n.8, (8 th Cir. 2006) (citing Robinson favorably); Reese v. Delo, 94 F.3d 1177, 1183 (8 th Cir. 1996) (same).

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4. Thus, testimony from Dr. Fortunati concerning the impact of the defendant's execution on the defendant's children and other family members or testimony from the children themselves to the same effect is not proper mitigating evidence and should be barred. 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

2nd

day of January, 2007.

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

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

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Case 1:00-cr-00531-WYD

Document 2104

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CERTIFICATE OF SERVICE I hereby certify that on this 2nd day of January, 2007, I electronically filed the foregoing GOVERNMENT'S 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 e-mail 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) 454-0100 Fax (303) 454-0403 E-mail address [email protected]

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