Free Motion for Discovery - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

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Filed 12/12/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 00-CR-531-D UNITED STATES OF AMERICA, Plaintiff, v. WILLIAM CONCEPCION SABLAN, Defendant. _______________________________________________________________________ RENEWED MOTION FOR FURTHER DISCOVERY REGARDING RACIAL DISPARITY IN CASES SUBMITTED FOR POSSIBLE DEATH PENALTY AUTHORIZATION _______________________________________________________________________ Defendant William Concepcion Sablan ("William"), through undersigned counsel, respectfully renews his Motion for Further Discovery Regarding Racial Disparity in Cases Submitted for Possible Death Penalty Authorization. BACKGROUND 1. On December 3, 2001, William filed his initial Motion for Further Discovery Regarding Racial Disparity in Cases Submitted for Possible Death Penalty Authorization. The early procedural history of this case is summarized in that motion and is incorporated herein. (A copy of the motion is attached as Attachment 1.) 2. The motion sets out the legal standard for obtaining further discovery on the issue of racial disparity in prosecutorial decisionmaking:
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a. In United States v. Armstrong, 517 U.S. 456 (1996), the Court held that when the defendant raises the issue of racial disparity, he is entitled to discovery if he can show that the government treated similarly-situated suspects of other races differently in making prosecutorial decisions; he does not, however, need to show that all the elements of a selective prosecution claim have been met. b. In Armstrong, the defendant's request for discovery was premised upon racial disparity in relation to the race of the defendant. In this case, the request is premised upon disparity in relation to the race of the victim. Thus, the Armstrong standard requires a showing of different treatment of Bureau of Prisons ("BOP") inmateon-inmate homicides when the victims were Black as opposed to when the victims were White. 3. The government filed a response on April 12, 2002. (A copy is attached as Attachment 2.) 4. William filed a reply on April 24, 2002, which is incorporated herein by reference. (A copy is attached as Attachment 3.) 5. The Court issued its Order on October 21, 2003. (A copy is attached as Attachment 4.) The Order reads, in pertinent part as follows: Like the defendants in Armstrong and James, Defendant presents evidence of the disproportionate application of the death penalty with respect to a victim's race. However, also like the defendants in Armstrong and James, Defendant here fails to present any evidence tending to show that similarly-situated individuals were not selected for the death penalty based on the race of his or her victim. Id. at 5 (emphasis added).
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***** Without more information as to the nature of the other 43 prison homicides, Defendant cannot satisfy the threshold requirement of a credible showing of disparate treatment between similarly-situated individuals. Id. at 6. 6. The Order also stated that "[b]ecause the Government has previously provided Defendant with the names of the defendants in the 43 other homicides, Defendant is free to determine through his own research what charges have been filed in those cases." Id. As the Court now knows, counsel for William made efforts to gather the additional information through the use of PACER searches and a FOIA request. Counsel have prepared the following charts, which are based upon government information.

Cases in Which Death Penalty Evaluation Forms Were Submitted Victim
Brown, Michael Leger, Charles

Date
12/27/04 08/2/05

Race Brief Synopsis of Facts
White White Staff discovered Brown in his cell, with blood coming from his mouth, it was determined he was stabbed in the chest four times. Leger was assaulted and repeatedly stabbed in the SHU Recreation Pen. After life threatening wounds were inflicted, the assaulting inmate surrendered the weapon to staff without incident. The assault weapon was a 8-10 inch long rod which had been sharpened at one end. The SHU officer was informed by another inmate that there was a dead inmate in his cell. When the officer arrived they found the victim lying on his stomach with his arms and hands tied to the bed frame. The victim had been strangled by the same inmate that reported his death to the officers. CPR was administered while an ambulance was called. He was taken to the hospital where he was pronounced dead. The victim was found unresponsive in the UNICORE Furniture Factory, lying on the floor bleeding from an

583 Forms Provided Yes/No
Yes (almost illegible) No

Marti, Andrew Hunt

04/13/96

White

No

Morrison, Charles Ray

12/22/96

White

Yes

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Campbell, Maynard

01/16/97

White

Alfrey, Thomas

01/18/97

White

Frankhouser, Robert

06/01/97

White

Jackson, Bernard

11/01/97

Black

Walker, Terry

05/18/99

Black

Stone, David

06/03/99

White

Estrella, Joey

10/10/99

White

apparent head injury. Surveillance videos revealed that the victim had been involved in a fight with another inmate and was struck in the head with a 2x4 approximately 18 inches long. An officer observed a physical altercation between the victim and two other inmates and called for assistance. One of the assailants dropped his weapon as requested; the other continued to stab the victim. When the assailant then threatened a staff member, the staff member struck the inmate with a chair causing him to drop the weapon. The victim was transported to a hospital for treatment and was pronounced dead as a result of his injuries. An inmate orderly informed the Jail Unit Officer that an inmate was killing the victim. The officer called for assistance and responded to the cell. They found a sheet tied around the victim's neck, and noted several head injuries resulting from a fight with his assailant. He was transported to the Jail Unit Hospital where he was pronounced dead as a result of his injuries. The victim was chased out of his cell and fell. The victim was then stabbed repeatedly. Attempts to separate the inmates by Staff were unsuccessful as the assailant swung his weapon at them. A broom handle was used to force the inmate off the victim. Emergency treatment was initiated and the victim was subsequently transferred to a local hospital where he was pronounced dead. The Victim was discovered by staff in the Law Library lying face down, unresponsive, in a pool of blood. Emergency assistance was requested and the victim was airlifted to a local hospital where he was pronounced dead. Assault was involved and the victim was struck several times. Officers found the victim being assaulted by two other inmates. They were ordered to stop, and did, however the victim received several puncture wounds to the chest and was transported to an outside hospital where he was pronounced dead. The victim was being chased on the recreation yard when his assailant was witnessed throwing an object, later identified as a weapon, onto the roof of one of the buildings. The victim was lying on the sidewalk, bleeding from his right side. He was taken to an outside hospital and pronounced dead due to multiple injuries to internal organs and loss of blood from the single stab wound. SHU officers observed the victim lying on the floor of his cell in a pool of blood. The victim sustained lethal injuries including a laceration to the neck and an incision to the abdomen about 30-40cm long.

Yes

No

No

Yes

No

Yes Incomplete; only last page of report available

No

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BLACK VICTIMS No Death Penalty Evaluation Form Submitted to Department of Justice Name
Ross, Cedric Joshua, Aubrey

Date
11/10/94 02/12/95

Brief Synopsis of Facts
Victim was stabbed five times, in his cell after a dispute in the TV room. Recreation staff was advised by another inmate to check the shower area. They discovered the victim with multiple (27) stab wounds. The weapon was found stuck in his neck. The victim was taken to an outside hospital where he was pronounced dead. The victim was found in the Card room on the floor where he had been stabbed to death with two knives. He was pronounced dead at a local hospital after attempts to revive him failed. Two inmates approached the Unit Officer with the victim on a stretcher. The unit officer assumed the victim was having a seizure but when they rolled him over there were two small puncture wounds in his back observed. He was taken to the institutional hospital where he stopped breathing and no pulse was detected. The staff tried to revive him but he was transported to an outside hospital where he was pronounced dead. The victim was found lying in his bed with the blanket pulled up to his chin, unresponsive to staff. They shook him to wake him and found he was cold to the touch. They also found blood on his pillow from a puncture wound to his right ear canal. CPR was administered and the victim was transferred to an outside hospital where he was pronounced DOA. After officers responded to commotion on the 2nd floor landing, several assaults were identified. This victim was found in his cell, unresponsive with numerous stab wounds. The victim was given emergency medical treatment and due to the severity of his injuries was transferred to an outside hospital where he was pronounced dead. Prior to the incident one of the assailants had received a code letter written in lemon juice from a former inmate to kill the victim, along with two others. After officers responded to commotion on the 2nd floor landing, several assaults were identified. This victim was also found in his cell, unresponsive with numerous stab wounds. The victim was given emergency medical treatment and due to the severity of his injuries was transferred to an outside hospital where he was pronounced dead. Prior to the incident one of the

583 Forms Provided Yes/No
Yes (Incomplete, only 1 pg) Possibly (Incomplete)

Dacoster, James

04/10/95

Yes

Adamson, Leon

02/17/05

Yes

Morrison, R.T.

06/15/96

Yes

Joyner, Frank

08/28/97

Yes

Salaam, Abdul

08/28/97

Yes

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Campbell, Bruce Wayne

11/25/97

Miller, Vernon Brown, Darryl

05/30/99 12/16/99

Martin, James Cook, Bryan

04/06/00

10/04/00

White, Michael

10/09/00

Taylor, Leonard

04/01/01

assailants had received a code letter written in lemon juice from a former inmate to kill the victim, along with two others. The victim was observed lying on his right side of the floor. When medical staff responded they observed blood coming from the mouth, nose and right ear of the victim. He was taken to an outside hospital where he was placed on a ventilator then later died. Investigation shows that he had been struck on the back of the head with a 2x4 as a result of a gambling debt. The victim was observed departing his unit with a bleeding stab wound in his chest area. He was transported to a hospital where he was pronounced dead. The victim was involved in a fight involving weapons. As two inmates walked out of cell 125, they were ordered to the floor where they were restrained. The victim was then observed walking out of cell125, bleeding from his face and chest. With a weapon, he started to go after one of the inmates being restrained but collapsed on the floor. He was restrained, taken to an outside hospital and pronounced dead. The SHU officer responded to a call to a cell where the victim was in need of medical attention. After no pulse was found the Medical Duty officer was notified, and the victim was pronounced dead. The victim was struck in his chest with a homemade weapon (7 inch flat metal), by another inmate. He was taken to the institution hospital for treatment but transferred to an outside hospital where he was pronounced dead. The victim was admitted to a local hospital for high fever and difficulty in breathing. He was pronounced dead, and an autopsy revealed that cause of death was homicide due to blunt trauma to the abdomen, the victim had been assaulted. The victim approached the Officer's station bleeding profusely from a wound on the left side of his neck. He had been struck in the neck with an ice pick type of weapon. He was transported to a local hospital and pronounced dead.

Yes

Yes No

Yes

No

Yes

No

7. At a December 7, 2005 hearing, Professor Radelet testified regarding these charts. He stated: "These raise questions. As a researcher, I'd say, well, gee, why is it that given, you know, pretty similar homicides, they're all inmate-on-inmate homicides, there's some pretty homogeneous group, why is it that within that group, the death penalty is sought so much more often when a white person is killed than when a black
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person is killed..." (Transcript 12/07/05 hrg. p. 74, lines 1-7). Moreover, "these patterns are consistent with a conclusion of racial bias, but they do not prove the racial bias." (Id. lines 9-11).

Victim Race White Black

EXHIBIT D 43 inmate-on-inmate 9-13-94 through 4-1-01 11 = D.P. Authorizations Death Penalty Yes No 9 (.818) 18 2 (.182) 14

27 (.628) 16 (.372)

Total 11 32 43 Whites are 63% of victims but 82% of the death eligible cases Seek Death: 9/27 White victims = .333 .333/.125 = 2.66 2/16 Black victims = .125

8. As noted above, Armstrong, does not require the defendant to prove all the elements of a selective prosecution claim in order to be entitled to additional discovery. For purposes of further discovery, William has shown that BOP homicide defendants whose victims were Black did not have their cases submitted for possible death penalty authorization, while the cases of similarly-situated defendants whose victims were White were submitted. 9. The defense understands that more information is needed in order to make a selective prosecution claim, and it has made every effort to obtain additional information. It is inconceivable that the BOP does not have this information readily available, and the
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prosecution should be ordered to obtain it and provide it to the defense. RACE OF VICTIM 10. The inmate information summary for Joey Estrella obtained from the BOP reads as follows:

For purposes of analyzing BOP inmate-on-inmate homicides, it is logical to use BOP's own classification. As noted above, BOP classified Estrella as White. Accusations that the defense is intentionally misleading the Court by considering Estrella as being White are unfounded. The defense is merely using BOP's classification of him, which is consistent with classifications made by the U.S. Census Bureau. BOP RECORDS 11. The BOP maintains records which contain the type of information needed to determine whether prosecutorial decisions about BOP inmate-on-inmate homicides have been race neutral. Without doubt, such homicides trigger an investigation. Information such as the victim's race and suspect's race, as well as the circumstances of the offense
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would be gathered and recorded as part of the investigation. BOP has this information. 12. The further discovery requested at this time was summarized by Professor Radelet during his testimony. A transcript of that summary is incorporated herein. (A copy of the relevant pages are attached as Attachment 5.) WHEREFORE, William respectfully requests that the Court order the prosecution to provide further discovery regarding the relevant BOP inmate-on-inmate homicides. Dated: December 12, 2005 Respectfully submitted, /s/ Patrick J. Burke Patrick J. Burke Dean Neuwirth Burke & Neuwirth P.C. 1660 Wynkoop Street, Suite 810 Denver, Colorado 80202 303-825-3050 Susan L. Foreman 1660 Wynkoop Street, Suite 810 Denver, Colorado 80202 303-825-3050 Counsel for William Sablan CERTIFICATE OF SERVICE I hereby certify that on this 12th day of December, 2005 a true and correct copy of the above, WILLIAM SABLAN'S RENEWED MOTION FOR FURTHER DISCOVERY REGARDING RACIAL DISPARITY IN CASES SUBMITTED FOR POSSIBLE DEATH PENALTY AUTHORIZATION was served via electronic mail to the following: Brenda Taylor ([email protected]) Phil Brimmer ([email protected]) Michael Hegarty ([email protected])
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Nathan Chambers Chambers, Dansky & Mulvahill 1601 Blake Street, Suite 300 Denver, Colorado 80202 303-825-2222

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Assistant U.S. Attorneys 1225 17th Street, Suite 700 Denver, Colorado 80202 303-454-0100 Forrest Lewis ([email protected]) Attorney at Law 1600 Broadway, #1525 Denver, CO 80202 Attorney for Rudy Sablan Donald Knight ([email protected]) Attorney at Law 7852 S. Elati St., #201 Littleton, CO 80120 Attorney for Rudy Sablan /s/ Jennifer J. Feldman

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