CA1: Second jury decision in death cases must be made after guilt phase

US v. Green, No. 05-1014, is a holds on mandamus that Federal Death Penalty Act (FDPA) forbids empaneling a second jury to determine whether the defendant will be killed until he is dead to protect society.  The court notes that it is not sure whether it can review this action via interlocutory appeal so it takes it up on “advisory mandamus” (where review would help other judges) which sounds really similar to an interlocutory review anyway.  The court holds, based on a reading of the (structure of the text of the statute as all of the exceptions seem to imply retrospective analysis of the trial) that under 18 U.S.C. § 3593(b), the decision to empanel a jury can only be made if “after a finding of guilt, good cause to discharge the original jury arises.”

But the court declined to “...pass upon the validity of the district court's suggestion that it might defer death-qualification altogether until after it takes a verdict on the issue of guilt or innocence.”

See PRACDL's commentary on this here.

Comments

[TomFreeland]

The Fifth Circuit dealt with this issue (also by way of mandamus) in the alien smuggling case opinion that I noted in an earlier blog post, found here:

http://appellate.typepad.com/appellate/2005/02/fifth_circuit_m.html