Free Motion to Preclude - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 00-CR-0531-D UNITED STATES OF AMERICA, Plaintiff, v. WILLIAM CONCEPCION SABLAN, RUDY CABRERA SABLAN, Defendants.
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William Sablan's Motion To Prohibit The Government From Introducing Evidence Of Unadjudicated Criminal Conduct During The Penalty Phase [Wm DP-24] __________________________________________________________________ Defendant William Sablan ("William"), through undersigned courtappointed counsel, respectfully requests the Court to prohibit the government from introducing evidence of unadjudicated criminal conduct during the penalty phase. As grounds, counsel state: 1. Until the government responds to the Court's Order to produce, it is not entirely clear what the government is intending to introduce during the penalty phase of this case to support its request for a death sentence. However, to the extent it intends to introduce evidence of unadjudicated criminal conduct, that is, criminal conduct that has not been adjudicated in a court of law, William objects.
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2. The Supreme Court has not resolved the question of whether unadjudicated criminal conduct can be introduced in the sentencing phase of a capital trial, despite the fact that the States are divided on the issue. See Williams v. Lynaugh, 484 U.S. 935, 935-36 (1987) (Marshall J., joined by Brennan, J. dissenting from denial of certiorari) ("whether the State may, consistent with the Eighth and Fourteenth Amendments introduce evidence of unadjudicated criminal conduct at the punishment phase of a capital trial . . . presents a serious constitutional issue that has provoked a number of conflicting court decisions nationwide"); Robertson v. California, 493 U.S. 879 (1989) (same); Devier v. Kemp, 484 U.S. 948 (1987) (same); Miranda v. California, 486 U.S. 1038 (1988) (same). 2. On an appeal from the denial of a writ of habeas corpus, the Tenth Circuit held that a State's introduction of such evidence did not violate due

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process. Hatch v. Oklahoma, 58 F.3d 1447, 1467 (10th Cir. 1995).1 The Circuit has not addressed whether such evidence violates the Sixth and/or Eighth Amendments. 3. William urges the Court to prohibit the government from introducing evidence of unadjudicated criminal conduct in the penalty phase of his case (should such a phase become necessary) because the use of such evidence violates the Fifth, Sixth, and Eighth Amendments. 4. The Fifth Amendment guarantees a defendant the presumption of innocence, Estelle v. Williams, 425 U.S. 501, 503 (1976), until he is proven guilty beyond a reasonable doubt, In re Winship, 397 U.S. 358 (1970). It also "guarantees the fundamental elements of fairness in a trial." Spencer v. Texas, 385 U.S. 554, 563-64 (1967). The Sixth Amendment requires that the jury be fair and impartial, Irvin v. Dowd, 366 U.S. 717, 721 (1961), and that the defendant "be
The Circuit relied, in part, upon Williams v. New York, 337 U.S. 241 (1949) where the Supreme Court held that it was constitutionally permissible for a sentencing judge to consider information that the defendant had participated in unadjudicated burglaries and thereafter sentence the defendant to death, despite the jury's recommendation of life imprisonment. The Circuit relied on Williams despite the fact that its assumption that a death penalty is constitutionally indistinguishable from other forms of punishment was subsequently repudiated in Gardner v. Florida, 430 U.S. 349, 357 (1977). See Williams v. Lynaugh, 484 U.S. 935, 938 (Marshall J., joined by Brennan, J. dissenting for denial of certiorari) (in Gardener, "it was recognized that the view expressed in Williams no longer prevails, and that the death penalty is qualitatively different from other punishments [and] we have invalidated a number of procedural rules that called into question the reliability of the sentencing determination").
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confronted with the witnesses against him," U.S. Const., amend. VI. The Eighth Amendment requires that "factfinding procedures aspire to a heightened standard of reliability." Ford v. Wainwright, 477 U.S. 399, 411 (1986) (citing Spaziano v. Florida, 468 U.S. 447, 456 (1984)). Moreover, the federal rules of evidence are to be applied in all federal trials. Fed. R. Evid. 101. These guarantees are eroded by the Federal Death Penalty Act ("FDPA"). 5. Therefore, in United States v. O'Driscoll, 250 F.Supp.2d 432, 435 (M.D. Pa. 2002), the court held that the hearsay rule would be applicable to the government's attempts to establish unadjudicated conduct, noting that: The elimination of the Rules of Evidence from federal death penalty proceedings greatly concerns us. Of particular concern is the use of hearsay testimony in support of unadjudicated acts of violence or misconduct. Hearsay is generally inadmissible because it is considered unreliable. See Introductory Advisory Committee Notes to Federal Rules of Evidence 801 through 807. It is considered unreliable because the declarant is not subject to cross-examination. Id. The finder of fact cannot view the witness and evaluate his perception, demeanor, and narration. Id. 6. Washington is among the States that have precluded the use of

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unadjudicated criminal conduct in capital sentencing proceedings.2 Its Supreme Court observed that: To allow the jury which has convicted defendant of aggravated first degree murder to consider evidence of other crimes of which defendant has not been convicted is, in our opinion, unreasonably prejudicial to defendant. A jury which has convicted a defendant of a capital crime is unlikely fairly and impartially to weigh evidence of prior alleged offenses. In effect, to allow such evidence is to impose upon a defendant who stands in peril of his life the burden of defending, before the jury that has already convicted him, new charges of criminal activity. Information relating to defendant's criminal past should therefore be limited to his record of convictions. State v. Bartholomew, 683 P.2d 1079, 1086 (Wash. 1984). See also Williams, 485 U.S. at 938 ("[a] jury that already has concluded unanimously that the defendant is a first-degree murderer cannot plausibly be expected to evaluate charges of other criminal conduct without bias and prejudice"); United States v. Davis, 912 F.Supp. 938, 948 (E.D. La. 1996) ("such a jury can hardly to expected to give the new information the sort of dispassionate consideration necessary for a reliable finding of guilty, regardless of how they might be instructed").

Other state cases that have held unadjudicated criminal conduct inadmissible per se include: Cook v. State, 369 So.2d 1251 (Ala. 1978); Commonwealth v. Hoss, 283 A.2d 58 (Pa. 1971); Scott v. Maryland, 465 A.2d 1126 (1983); State v. McCormick, 397 N.E.2d 276 (Ind. 979); State v. BoBo, 727 S.W.2d 946 (Tenn. 1987).
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7. For the reasons just stated, the Eighth Amendment's heightened reliability standard cannot be met. 8. In addition to the constitutional flaws just discussed, the introduction of evidence of unadjudicated criminal conduct may well result in time-consuming and misleading mini-trials on completely collateral issues. That too would contribute to undermining the heightened reliability required in capital sentencing proceedings. See Davis, 912 F.Supp. at 948-49 ("introduction of other alleged crimes also entails a full blown adversarial hearing . . . [that] can degenerate into an unmanageable and confusing series of mini-trials within the penalty phase itself . . . more inflaming to a jury than the dry paperwork used to establish an actual conviction. . . [resulting in the possibility that the] jury may give more weight to the evidence of a defendant's unadjudicated conduct that to his actual convictions"). WHEREFORE, William requests that the Court prohibit the government from introducing evidence of unadjudicated criminal conduct during the penalty phase. Dated: February 27, 2006

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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 CERTIFICATE OF SERVICE I hereby certify that on February 27, 2006, I electronically filed the foregoing Motion To Prohibit The Government From Using Unadjudicated Criminal Conduct During The Penalty Phase [Wm DP-24] 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] [email protected] [email protected] [email protected] By: s/ Susan L. Foreman Nathan Chambers Chambers, Dansky & Mulvahill 1601 Blake Street, Suite 300 Denver, CO 80202 303-825-2222

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