Free Response to Motion - 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 Case No. 00-CR-00531-WYD-01 UNITED STATES OF AMERICA, Plaintiff, v. 1. WILLIAM CONCEPCION SABLAN, 2. RUDY CABRERA SABLAN, Defendants.

GOVERNMENT'S RESPONSE TO DEFENDANT WILLIAM SABLAN'S RENEWED MOTION FOR FURTHER DISCOVERY REGARDING RACIAL DISPARITY IN CASES SUBMITTED FOR POSSIBLE DEATH PENALTY AUTHORIZATION

The United States of America, by William J. Leone, United States Attorney for the District of Colorado, and through Brenda K. Taylor and Philip A. Brimmer, Assistant U.S. Attorneys, responds as follows to the above-referenced motion. I. INTRODUCTION Defendant William Sablan is asking the Court to revisit the issue of whether he has made a sufficient showing to justify further discovery on the issue of racial disparity in prosecutorial death penalty decision making. Attached to defendant's Renewed Motion is

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the government's initial Response, dated April 12, 2002, incorporated by reference herein, and the Court's Order of October 2, 2003 denying the request. The defendant still has not made a sufficient showing to justify the discovery he seeks, because 1) his request is based on the inaccurate premise that the victim of this murder, Joey Jesus Estrella, was "white"; and 2) the evidence he has presented does not meet the criteria set out in the case law. II. ARGUMENT A. A defendant who seeks discovery on a claim of selective prosecution must show some evidence of both discriminatory effect and discriminatory intent. The United States Supreme Court, in an opinion reversing the Sixth Circuit in 2002, made it clear that discovery in this situation is justified only upon a showing of both discriminatory effect and intent. United States v. Bass, 536 U.S. 862 (2002). This opinion, which was issued after the parties initially briefed the issue in 2001 and 2002, and which has not previously been discussed in oral argument by either party, is dispositive as to the legal standard and instructive as to the sufficiency of evidence on this issue. The defendant cited the now-reversed Sixth Circuit Bass opinion in his original request for discovery, but in later pleadings makes the curious argument that both Armstrong and the Supreme Court decision in Bass are not relevant here because William Sablan has not yet made a claim of selective prosecution. See Reply to the Government's Response Regarding the Death Penalty Operating In An Arbitrary and Capricious Manner [Wm DP-2], at ¶ 7. In his Renewed Motion for Discovery, however, he cites Armstrong 2

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in support of his request but ignores Bass. This Court should not and cannot ignore Bass, and it should deny Defendant's request for discovery. 1. Bass District Court and Sixth Circuit Opinions In Bass, the United States District Court for the Eastern District of Michigan had granted a request for discovery related to allegations of racial disparity in a death penalty case involving a black defendant. The evidence offered to support this request was the same Department of Justice report upon which defendant Sablan relies in this case, along with public comments by then-Attorney General Janet Reno and then-Deputy Attorney General Eric Holder. 1 The Sixth Circuit affirmed the district court's decision, finding that the defendant had shown "some evidence" of both discriminatory effect and discriminatory intent. The Sixth Circuit read Armstrong correctly as requiring a) some evidence showing a discriminatory effect, for example, under the facts of Bass, a discriminatory effect on black defendants as compared to similarly situated white defendants and b) discriminatory intent. "To establish discriminatory intent, a defendant must show that the prosecutorial policy `was motivated by racial animus.'" United States v. Bass, 266 F.3d 532, 536 (6 th Cir. 2001) (quoting United States v. Jones, 159 F.3d 969, 976-77 (6 th Cir. 1998) (emphasis added)). The United States Supreme Court agreed with

The Sixth Circuit noted that "Holder tacitly recognized that the Survey's results implicate the very concerns forming the basis of Bass's selective prosecution claim: `I'm particularly struck by the facts that African-Americans and Hispanics are over-represented in those cases presented for consideration of the death penalty, and those cases where the defendant is actually sentenced to death.'" United States v. Bass, 266 F.3d at 538 (emphasis in original). 3

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the legal standard used by the Sixth Circuit but did not find the evidence sufficient to meet that standard. 2. Bass Supreme Court Opinion In a per curiam opinion summarily reversing the Sixth Circuit, the United States Supreme Court clarified that "[i]n United States v. Armstrong, 517 U.S. 456, 465, 116 S. Ct. 1480, 134 L.Ed.2d 687 (1996), we held that a defendant who seeks discovery on a claim of selective prosecution must show some evidence of both discriminatory effect and discriminatory intent." Bass, 536 U.S. at 862 (emphasis added). The Court went on to say that it only needed to consider the evidence in support of the first prong, discriminatory effect, to conclude that the defendant had failed to make a "credible showing" that "similarly situated individuals of a different race were not prosecuted" as required under Armstrong. Bass, 536 U.S. 862, citing United States v. Armstrong, 517 U.S. at 465. The Court went on to say: Even assuming that the Armstrong requirement can be satisfied by a nationwide showing (as opposed to a showing regarding the record of the decision makers in respondent's case), raw statistics regarding overall charges say nothing about charges brought against similarly situated defendants....Under Armstrong, therefore, because respondent failed to submit relevant evidence that similarly situated persons were treated differently, he was not entitled to discovery... The Sixth Circuit's decision is contrary to Armstrong and threatens the "performance of a core executive constitutional function." (Citing Armstrong, supra, at 465.) United States v. Bass, 536 U.S. at 864.

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B. The defendant has failed to make a credible showing of discriminatory effect or discriminatory intent. The defendant presented evidence purporting to show that there is a disparity in the way death penalty eligible cases are handled based on the race of the victim. The studies he cites and the testimony of Professor Michael Radelet suggest that cases involving white victims are more likely to result in death penalty authorization than those involving black victims. Whether that is accurate or not has no impact on this case, because Joey Jesus Estrella was Hispanic. When it serves his argument, the defendant acknowledges as much in characterizing Mr. Estrella as a Mexican gang member. Because the victim was Hispanic, the most pertinent testimony offered by Dr. Radelet was his description of a California study which showed that homicides involving Hispanic victims were even less likely to result in authorization of the death penalty than those involving black victims. Given those statistics, Professor Radelet found the decision to seek the death penalty in this case, with an Hispanic victim, unusual. (Transcript, 12/7/05 hrg., p.34, line 7-25, p.35, lines 1-25, and p. 36, lines 1-5). Contrary to the assumption of Professor Radelet, quoted at paragraph 7 of Defendant's Motion, this case is not similar to all of the other inmate-on-inmate homicides within the BOP. A review of the summary chart describing other BOP homicides found at pages 3-6 of defendant's Renewed Motion, makes that clear. And anyone who has seen the videotape or photos of the carnage in that cell on October 10, 1999 understands that this case is different. That difference, and not the race/ethnicity of 5

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the defendants or the victim, resulted in the government's decision to seek the death penalty. Under the facts of this case, there is no basis for granting the defendant's request for discovery. III. CONCLUSION For all of the reasons stated above, the government respectfully asks the Court to deny the defendant's Renewed Motion for Further Discovery Regarding Racial Disparity in Cases Submitted for Possible Death Penalty Authorization.

Respectfully submitted this 19th day of December, 2005. WILLIAM J. LEONE 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) 454-0406 E-mail address: [email protected] Attorney for Government

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CERTIFICATE OF SERVICE I hereby certify that on this 19th day of December, 2005, I electronically filed the foregoing GOVERNMENT'S RESPONSE TO DEFENDANT WILLIAM SABLAN'S RENEWED MOTION FOR FURTHER DISCOVERY REGARDING RACIAL DISPARITY IN CASES SUBMITTED FOR POSSIBLE DEATH PENALTY AUTHORIZATION 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]

Attorneys for Rudy Sablan Donald R. Knight [email protected] Forrest W. Lewis [email protected]

Nathan Dale Chambers [email protected] [email protected]

Susan Lynn Foreman [email protected]

Dean Steven Neuwirth [email protected]

s/ Donna Summers DONNA SUMMERS Legal Assistant U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, CO 80202 Phone (303) 454-0100 Fax (303) 454-0406 E-mail address [email protected]

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