Free Motion to Strike - 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. __________________________________________________________________ William Sablan's 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] __________________________________________________________________ Defendant William Sablan ("William"), through undersigned courtappointed counsel, respectfully requests the Court to strike the government's allegations of threaten[ing] others with violence, lack of remorse, and low rehabilitative potential, which the government includes as support of its nonstatutory aggravating factor of future dangerousness. As grounds, counsel state: 1. It is not clear from the government's Notice of Intent to Seek the Death Penalty ("NOI") what it intends to offer in support of its nonstatutory aggravating
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factor "future dangerousness of the defendant." (NOI at 5). Its introductory paragraph to that factor reads as follows: The defendant is likely to commit criminal acts of violence in the future which would be a continuing and serious threat to the lives and safety of others. Simmons v. South Carolina, 114 S.Ct. 2187, 2193 (1994). In addition to the capital offense charged . . . and the statutory aggravating factors alleged . . . the defendant has engaged in a continuing pattern of violent conduct in and out of an institutional setting, has threatened others with violence, has demonstrated low rehabilitative potential, and/or has demonstrated lack of remorse, including but not limited to one or more of the following: ... The NOI then continues with a list of "criminal cases" and "incident reports." 2. If the government is planning to tender the issue to the jury simply as ­ "the defendant is likely to commit criminal acts of violence in the future which would be a continuing and serious threat to the lives and safety of others: Yes___ No ___", and if Wm DP-23 is granted so the jury is not given a copy of the NOI, this motion will be rendered moot.1 3. On the other hand, if the government is intending to submit "threatened others with violence, has demonstrated low rehabilitative potential and/or has

See United States v. Johnson, 136 F.Supp.2d 553, 561 (W.D. Va. 2001) (finding the government's nonstatutory aggravating factors too vague, but granting leave to redraft them in "short declarative sentences").
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demonstrated lack of remorse" as enumerated "facts" that support its nonstatutory aggravating factor of future dangerousness, it should be prohibited from doing so. 4. As discussed in Wm DP-16, where there is no serious personal injury, information regarding threats of violence are insufficiently relevant and reliable to submit to the jury for consideration in determining whether William should live or die. 5. As to rehabilitation, Congress has declared that imprisonment is not intended to promote rehabilitation. 18 U.S.C. § 3582(a) ("recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation"). Given that rehabilitation is not a proper purpose of imprisonment, it necessarily follows that a defendant's low potential for rehabilitation cannot be a valid justification for not choosing a sentence of life imprisonment. Requiring a jury to consider a matter that is irrelevant to the life and death decision violates the Eighth Amendment and the Due Process Clause. See Stephens v. Zant, 462 U.S. 862, 885 (1983) (death penalty statute may not "attach[] the `aggravating' label to factors that are constitutionally impermissible or totally irrelevant to the sentencing process). 6. Moreover, low rehabilitative potential is unconstitutionally vague. In United States v. Davis, 912 F.Supp. 938, 946 (E.D.La. 1996), the court made the
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following observations: The term "low rehabilitative potential" is too vague. Rehabilitative potential for what? The only relevant issue would be [the defendant's] rehabilitative potential for becoming a nonthreat to the health and safety of others. With that limitation, it becomes the converse of future dangerousness. It may therefore be combined with the second nonstatutory factor, but it is not appropriate as a separate freestanding factor. Since this 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. 7. It is also duplicitous of future dangerousness. United States v. Davis, 2003 WL 1873088 *10 (E.D.La. April 10, 2003) (low rehabilitative potential may be an aggravating factor if the government does not also assert future dangerousness). Duplicitous aggravating factors unconstitutionally skew the weighing process. United States v. McCullah, 76 F.3d 1087, 1112 (10th Cir. 1996); United States v. Nguyen, 928 F.Supp. 1525, 1543 (D. Kansas 1996). 8. As to lack of remorse, the Davis case is again instructive: Lack of remorse is a subjective state of mind, difficult to gage objectively since behavior and words don't necessarily correlate with internal feelings. In a criminal context, it is particularly ambiguous since guilty persons have a constitutional right to be silent, to rest on a presumption of innocence and to require the government to prove their guilt beyond a reasonable doubt. To allow the government to highlight an offender's "lack of
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remorse" undermines those safeguards. Id. at 946. As a result, the court ruled that lack of remorse was an inappropriate independent factor to consider in that case. The government's proposed evidence reflected the defendant's "jubilation" in learning the victim had been killed, but it did not "propose to introduce evidence of continuing glee, or boastfulness, or other affirmative words or conduct that would indicate a pervading and continuing lack of remorse." Id. The court did, however, hold that the government could "argue [the defendant's] exultation as information probative of [his] future dangerousness." Id. 9. In the instant case, there is the added problem that lack of remorse is duplicitous of one of the statutory aggravating factors alleged. The NOI alleges that "[t]he defendant's enjoyment of the killing, evidenced by celebratory shouts, offers of body parts of the victim to other inmates, and debasing the body, constitutes relishing the crime within the meaning of `especially depraved.'" (NOI at 4). As in Davis, the government might be allowed to argue that this evidence is probative of future dangerousness, but it cannot submit it as a separate aggravating factor. To do so would unconstitutionally skew the weighing process. WHEREFORE, William respectfully requests that the Court strike the allegations of threats of violence, low rehabilitative potential and lack of remorse
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from the NOI. Dated: February 13, 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 CERTIFICATE OF SERVICE I hereby certify that on February 13, 2006, I electronically filed the 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] with the Clerk of the Court using the CM/EFC system which will send notification of such filing to the following e-mail address: [email protected] [email protected] [email protected] [email protected]
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Nathan Chambers Chambers, Dansky & Mulvahill 1601 Blake Street, Suite 300 Denver, CO 80202 303-825-2222

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By: s/ Susan L. Foreman

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