US v. Sampson, No. 04-6001. (This is a first of the First) Since Selya wrote it, you sort of can guess where it is going and how it sounds. In this case, the Judge Selya uses the special occasion of the First circuit’s first direct review of a federal death sentence after a guilty plea to do something special: use some big words. This case was somewhat complicated because, “Sampson committed a series of bank robberies in North Carolina in May, June, and July of 2001. He then fled to Massachusetts. On July 23, he called the FBI's Boston office and offered to self-surrender. The call was disconnected and, although he waited for the police to arrive, Sampson was not apprehended.”
Quite frankly, I think that the outcome was predetermined. After all, while Selya might want to criticize individual cops or a given prosecutor, he isn’t know to want to take a challenge to a state – much less the Federal Death Penalty Act – too seriously. But we do know he will use big words. So, you can just stop reading now for all I care. But, just in case you are interested in knowing how it is that the feds are going to get the permission to put someone to death, you can read on.
First of all, the Selya holds that the FDPA isn’t unconstitutional because it doesn’t require the presentation of Ring aggravating factors to the grand jury. See 18 U.S.C. §§ 3591(a)(2), 3593(b). The FDPA was pre-Ring, and Selya cites a bunch of cases and concludes, “No provision of the FDPA prohibits a grand jury from considering those factors necessary for imposition of a death sentence.” See? Prosecutors don’t have exclusive authority. The grand jury can, on its own, figure out what the mitigating factors are?
Then, in a bizarre act of legal judo, Selya holds that since, “in the habeas context, Apprendi and Ring regularly have been held to announce a new rule of criminal procedure, not a new rule of substantive law” the “rule against massive judicial rewriting of statutes simply is not implicated here. Adhering to a court-crafted rule of criminal procedure when applying the FDPA does not constitute impermissible statutory redrafting.” Got it? Because Ring isn’t substantive, the courts can monkey around with the statutes.
Next, Selya rejects the idea that “because the federal death penalty is infrequently sought and even more infrequently carried out, its imposition is arbitrary, capricious, and therefore unconstitutional.” But, Selya decides that Stewart’s concurrence in Furman v. Georgia, 408 U.S. 238 (1972) doesn’t apply, but the real concerns about arbitraryness are whether “the discretion exercised by juries be guided so as to limit the potential for arbitrariness.” But, Selya gets even more wacky. He cites theUS Attorneys manual where it lays out its internal procedures for deciding whether to seek the court’s permission to kill someone which say that the DOJ will “consider” “ "evidence of racial bias against the defendant or evidence that the Department has engaged in a pattern or practice of racial discrimination.” Got it? Because the prosecutor says that they will consider evidence of racial bias, and its past history of racial bias, it isn’t arbitrary. And to make things clear, it Selya points out that there is nothing unconstitutional about mildly uneven application of the death penalty.
It should come as no surprise that Selya rejects the argument that the FDPA is unconstitutional because it probably adversely effects black people (even though Sampson in white.) Reaching beyond the standing issue, because “death is different,” Selya reasons that statistics are not good enough to prove Sampson’s point, and even though he plead guilty, the statistics about innocent defendants don’t help him. Selya gloats a bit about how the Supreme Court appears to reject actual innocence claims in spite of newly discovered evidence.
As we can guess, the argument that the death penalty is unconstitutional as a whole, fails.
Looking at the jury instructions, Selya argues finds that they were not in error, despite the fact that they didn’t provide much in the way of definition of “sufficiency.” Selya rejects the notion that a “reasonable doubt” standard should explicitly apply to all the aggravating factors? Why? “his argument founders, however, because it assumes, without the slightest support, that the weighing of aggravating and mitigating factors is a fact. This assumption is incorrect. As other courts have recognized, the requisite weighing constitutes a process, not a fact to be found.” Whatever the case, the District Court’s instructions were not confusing.
The First then goes though all the aggravating factors. It also affirms the way jurors were selected and retained (including a novel way of “death-qualify” a jury).
Gruesome pictures come in, as does evidence about other crimes.
There is an interesting argument regarding the behavior of spectators. But, the denial of a motion for mistrial is reviewed for abuse of discretion.
And, last, but not least (and most disturbing) Selya affirms the finding that ex parte conduct between a government expert and a juror wasn’t prejudicial.
I think I got all the important stuff, but if you think anything else needs to be said, post a comment.
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