Free Response - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 1769

Filed 04/21/2006

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IN THE 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, RUDY CABRERA SABLAN, Defendants.
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William Sablan's Reply To The Government's Response To Wm DP-22 Regarding Threatening Violence, Low Rehabilitative Potential And Lack Of Remorse __________________________________________________________________ Defendant William Sablan ("William"), through undersigned courtappointed counsel, submits the following in reply to the government's response to his Motion To Strike Threatening Violence, Low Rehabilitative Potential, and Lack Of Remorse From The Government's Notice Of Intent To Seek The Death Penalty [Wm DP-22]. The government's response is Document # 1734. 1. Wm DP-22 was intended to prompt the Court and counsel to envision the special verdict form that will be given to the jury at the conclusion of the penalty phase. Although the government's Notice of Intent to Seek the Death Penalty
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("NOI") only enumerates future dangerousness as its nonstatutory aggravating factor, its discussion of that factor includes the concepts of "threatened others with violence, has demonstrated low rehabilitative potential, and/or has demonstrated lack of remorse . . .." (NOI at 5). In this case, that language amounts to different ways of saying the same thing. It would be inappropriate, therefore, to provide the NOI discussion to the jury and/or to separately list these concepts in the special verdict form. 2. At issue is a risk well described by the court in United States v. Davis, 912 F.Supp.2d 9928, 946 (E.D. La. 1996): "Since [the FDPA] is a statute in which the jury is to `weigh' aggravating factors versus mitigating factors, there is always the danger that one or more jurors will weigh by counting. Breaking out what is essentially one factor into separately itemized factors is unduly prejudicial and confusing."1 3. Here, this risk has partially been eliminated because the government has agreed in its response to Wm DP-23 that the NOI should not be given to the jury for its use during deliberations. Further, the government has stated in its response to this motion that it does not intend to submit lack of remorse as a separate

In Davis, the court was discussing how rehabilitative potential is the converse of future dangerousness.
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aggravating factor. (Response at 4). Unfortunately, its response does not specifically say the same thing in regards to threatening violence and low rehabilitative potential. William seeks a commitment from the government and/or an order by the Court that these will not be listed on the special verdict form. 4. There are aspects of the government's response, however, that reflect continued areas of dispute, mainly as they relate to other motions William has filed. They include the following: a) In its response, the government refutes the defense contention (advanced mainly in Wm DP-16) that where threats of violence are unaccompanied by injury, they are insufficiently relevant and reliable for jury consideration on the decision of whether William should live or die. It argues that William's contention is "contrary to the Tenth Circuit's opinion in Boltz v. Mullin, 415 F.3d 1215, 1231 (10th Cir. 2005). Boltz is not dispositive. The issue in that habeas appeal from an Oklahoma conviction was the sufficiency of the evidence supporting a finding of the aggravating factor "continuing threat", evidence that included an unadjudicated burglary. The Circuit noted that although Oklahoma law prohibited the use of a nonviolent crime standing alone to support continuing threat, in that case the aggravating factor was based on facts other than the burglary. The government's reliance on Boltz to support its assertion that "[i]f
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`nonviolent' offenses can be submitted to the jury, certainly threats of violence can be submitted" is misplaced. Burglary is a crime; threats of violence are not. The burglary at issue in Boltz was related to the underlying circumstances of the murder charged whereas the threats attributed to William in the NOI are not related to the charge and they clearly fall into the category of "warped bravado" as described in Davis, 912 F. Supp. 2d at 945. b) Regarding low rehabilitative potential, the government states that "courts have allowed the government to argue low rehabilitative potential as part of the nonstatutory aggravator of future dangerousness." (Response at 3). It does not respond to William's claim that the concept is irrelevant under the FDPA. While historically the goals of imprisonment included rehabilitation of the offender, that is no longer true under federal law. In 18 U.S.C. § 3582(a), Congress stated that imprisonment is not an appropriate means of promoting correction and rehabilitation. Because our federal government has abandoned the concept of rehabilitating incarcerated offenders, a capital defendant's low rehabilitative potential is not a valid basis for the jury to choose execution rather than life imprisonment. As a result, in addition to not being listed on the special verdict form, low rehabilitative potential should not be argued by the government. WHEREFORE, assuming the Court accepts the parties' agreement that the
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NOI will not be provided to the jury, William respectfully requests that threats of violence, low rehabilitative potential, and lack of remorse not be separately listed in the special verdict form. Additionally, William requests that the government be prohibited from arguing low rehabilitative potential to the jury because it is irrelevant to the sentencing decision. Dated: April 21, 2006 Respectfully submitted, Patrick J. Burke Dean Neuwirth Burke & Neuwirth P.C. 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 By: s/ Susan L. Foreman Susan L. Foreman 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 Counsel for William Sablan Nathan Chambers Chambers, Dansky & Mulvahill 1601 Blake Street, Suite 300 Denver, CO 80202 303-825-2222

CERTIFICATE OF SERVICE I hereby certify that on April 21, 2006, I electronically filed the foregoing William Sablan's Reply The Government's Response To Wm DP-22 Regarding Threats, Low Rehabilitative Potential And Lack Of Remorse with the Clerk of the Court using the CM/EFC system which will send notification of such filing to the following e-mail addresses:
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[email protected] [email protected] [email protected] [email protected] By: s/Susan L. Foreman

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