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United States v. Fell

United States District Court, D. Vermont

December 13, 2016



          Geoffrey W. Crawford, Judge United States District Court


         In 2015, the U.S. Supreme Court issued its decision in Glossip v. Gross, 135 S.Ct. 2726. The case concerned challenges under the Eighth Amendment to execution by lethal injection of four defendants sentenced to die by state courts in Oklahoma.

         Justice Breyer, joined by Justice Ginsburg, issued a dissent calling "for full briefing on a more basic question: whether the death penalty violates the Constitution." Id. at 2755. The dissent identified a series of systemic shortcomings in the administration of the death penalty in the United States, especially as it is applied by the states. It divided these into four categories: "(1) serious unreliability, (2) arbitrariness in application, (3) unconscionably long delays that undermine the death penalty's penological purpose [and] (4) most places in the United States have abandoned its use." Id. at 2756.

         In response, Justice Scalia and Justice Thomas wrote two strongly worded concurring opinions which defended the death penalty as the legitimate exercise of democratic authority. Both justices pointed to the shocking cruelty of the crimes which led to the death sentences in these and other death penalty cases. Both questioned the authority of the judiciary to interpose its own philosophical concerns about the death penalty. And both identified utilitarian purposes such as deterrence which may justify executions.

         The dissent and concurring opinions in Glossip offer a particularly vivid account of the long-running dispute over the constitutionality of the death penalty within the Supreme Court. A federal trial judge is without authority to rewrite the law so as to overrule the majority position at the Supreme Court. The current state of the law is that the death penalty is a constitutional punishment for murder committed by adults not disqualified for reasons of intellectual disability who have received a trial which meets the standards set by Gregg v. Georgia, 428 U.S. 153 (1976) and Ring v. Arizona, 536 U.S. 584 (2002). Changing forty years of decisional law raises questions that can only be settled by the Supreme Court itself.

         But a trial court has its own contribution to make to the debate. The court can hold a hearing and permit witnesses to testify. In Glossip, Justice Breyer raised a series of questions about whether the death penalty is imposed fairly or in an incurably arbitrary manner. The questions he raised are troubling. They are essentially empirical. They require consideration of what has actually happened in the United States since the restoration of the death penalty following the Gregg decision.

         Over the course of two weeks last summer this court sought to develop a factual record based on live testimony and supporting exhibits sufficient to answer the question of whether the constitutional requirements for a death penalty statute set out in Gregg have been met in practice. As the court's findings indicate, the Federal Death Penalty Act, 18 U.S.C. §§ 3591, et seq. ("FDPA"), falls short of the standard required in Furman v. Georgia, 408 U.S. 238 (1972), and in Gregg for identifying defendants who meet objective criteria for imposition of the death penalty. Like the state statutes enacted after Furman, the FDPA operates in an arbitrary manner in which chance and bias play leading roles.

         The trial court's obligation does not end with a review of the facts. The court is required to address the legal issues raised by the parties. That resolution may be no more than an acknowledgment that the law has been settled on a particular question. Alternatively, the new factual record may require a fresh look at the manner in which existing principles are applied to a factual record which continues to develop The court has sought to undertake this new look in a manner consistent with existing authority which comes principally from the Supreme Court.

         To get right to the point, the court has sought to follow the method expressed in Atkins v. Virginia, 536 U.S. 304 (2002) in considering the proportionality of the death penalty. The court has also considered the separate argument that application of the death penalty has become arbitrary.

         The disproportionality challenge falls short because of the absence of proof of a national consensus to abolish the death penalty. As the law stands now, proof of consensus is a prerequisite for finding the death penalty unconstitutional as applied to particular crimes or particular types of defendants. By assessing public opinion, especially as it is expressed through legislation in the states, the Supreme Court finds a basis for determining evolving standards of decency for the nation as a whole. If the requirement of consensus applies to the limited challenges brought in cases like Atkins, then it must also apply to the claim of disproportionality which the defense levels against the imposition of the death penalty in all cases.

         The court has also considered the problem of arbitrary application of the death penalty to small numbers of defendants whose crimes are indistinguishable from the far greater number who receive life sentences. The court has followed existing law in declining to rule that "arbitrariness" is an independent constitutional violation.

         Scope of the Evidentiary Hearing

         In this case, the defense filed extensive motions challenging the constitutionality of the FDPA, (Docs. 668, 670, 673 and 674). The issues raised followed the Glossip dissent closely. The questions raised by Justice Breyer's dissent are:

         I. Unreliability

A. Mistaken Conviction and Exoneration
B. Bias Through "Death Qualification" of the Pool of Prospective Jurors
C. Flawed Forensic Testimony
D. Identifiable Rate of Erroneous Conviction

         II. Arbitrariness

A. Rarity and "Freakish" Imposition of the Death Penalty
B. Continuing Impact of Race, Gender and Geography
C. Underfunding of Capital Defense
D. Political Pressure on Elected Judges
E. Systemic Failure to Identify the "Worst of the Worst" Defendants

         III. Excessive Delay

A. 18-25 Year Delays Between Conviction and Execution
B. Solitary Confinement and Uncertainty of Outcome
C. Volunteering for Death and Rates of Suicide on Death Row
D. Undermining of the Penological Rationales of Deterrence and Retribution

         IV. Unusual - Decline in Use of the Death Penalty

A. Reduction in Annual Death Sentences and Executions
B. State-Wide Abolishment Through Legislative Change
C. State-Wide Lack of Use
D. Concentration of Death Sentences in a Few States and Counties
E. Direction of Change at the Level of the States
F. Declining Public Support
G. Practice by Other Nations

         The witnesses called at the hearing addressed many of these issues. Because this is a federal prosecution and the defense motion challenges the constitutionality of the FDPA, some of the issues raised in the Glossip dissent arising in the context of state cases had little or no application. The funding of a legal defense is generally not an issue in federal death penalty cases in which the amounts expended for the defense of the accused are both enormous in actual amount and largely unlimited as to purpose and strategy adopted by defense counsel. Political pressure on elected state judges has no relevance to a federal judiciary with life tenure. In this case, the parties have addressed concerns about the potential unreliability of certain forensic evidence through a separate series of Daubert motions and hearings tailored to the needs of this case. But in general, most of the Glossip critique applies with equal force to the experience of federal death penalty practice.

         Organization of this Decision

         The court will address the motions in two stages. First, it will review the testimony and exhibits. To the extent possible, the court will make specific findings about the subject areas addressed by the parties. Second, the court will address the legal issues raised by the defendant's motions. The findings follow the outline above.

         One preliminary point is important. Through two weeks of hearings, only three issues were contested through the admission of conflicting testimony and other evidence. These were bias arising from the race of the victim (Part II (B)), the effects of solitary confinement on death row (Part III (B)), and the statistical evidence of a deterrent effect on the murder rate achieved through capital punishment (Part III (D). With respect to deterrence in particular, the parties demonstrated the existence of a lively and continuing debate among statisticians, economists and other social scientists about the deterrent effect of the death penalty. In all other areas, however, the evidence was one-sided and came only from the defense.

         This imbalance occurred not through lack of notice or effort by either side. In February, 2016, the court stated its intention to hold an evidentiary hearing tailored to the issues raised in the Glossip dissent. (Doc. 724) Rather, in working through these factual issues and the available scholarship, one realizes that the criticism of the death penalty published during the modern, post-Furman era rests on studies and analysis which are largely uncontroverted in academic circles.


         I. Unreliability

         A. Mistaken Conviction and Exoneration

         Richard Dieter, former director of the Death Penalty Information Center ("DPIC"), testified concerning the risk of execution of innocent people. He testified that DPIC maintains a list of people who were convicted and sentenced to death and subsequently exonerated either through retrial and acquittal or by dismissal of all charges by the prosecution. Dieter Tr. 116. [1] The list also includes five people who were pardoned by governors for reasons of factual innocence. Between 1973 and 2015, 156 state death row prisoners have been exonerated in the United States. Dieter Ex. 9. DNA played a substantial role in 20 of these cases.

         There are no federal defendants on the DPIC list. In his declaration provided in preparation for testifying, Mr. Dieter noted that there have been 14 acquittals at the guilt phase since enactment of the FDPA. The FDPA operates on a much smaller scale than death penalty prosecution in the states. Identifiable errors leading to exoneration have not been a feature of FDPA litigation.

         B. Jury Bias Through "Death Qualification" of Prospective Jurors

         Since the origins of the Republic, jury selection in capital cases has featured some form of "death qualification" during which potential jurors who are opposed to the death penalty are identified and excused. See United States v. Cornell, 25 F. Cas. 650 (C.C.R.I. 1820) (No. 14, 868). The Supreme Court considered the issue in Logan v. United States, 144 U.S. 263, 628 (1892) in a decision permitting the exclusion of jurors with "conscientious scruples in regard to the infliction of the death penalty for crime." (internal quotation omitted). Many states adopted statutes which excluded jurors who admitted to such scruples at jury selection.

         The Supreme Court altered this standard in Witherspoon v. Illinois, 391 U.S. 510 (1968), when it restricted the excusal of potential jurors for cause to those "who stated in advance of trial that they would not even consider returning a verdict of death." Id. at 520. In the view of the Court, the exclusion of all jurors "who expressed conscientious or religious scruples against capital punishment and all who opposed it in principle" crossed the line of neutrality and "stacked the deck against the [defendant.]" Id. at 522. Only potential jurors who were unalterably opposed to the death penalty were subject to removal for cause.

         The standard was further refined in Wainwright v. Witt, 469 U.S. 412 (1985). The decision defines the qualification standard as whether "the juror's views [in opposition to the death penalty] would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Id. at 424 (internal quotations omitted). The requirement which lower courts had drawn from Witherspoon - that a juror could be excused only if he or she would vote against the death penalty automatically - was removed. See also Lockhartv. McCree, 476 U.S. 162 (1986).

         The social science studies presented at the hearing in this case considered whether the process of determining whether jurors suffer from "substantial impairment" in their ability to reach a verdict in favor of death is itself a cause of bias in favor of conviction at the guilt phase as well as subsequent imposition of the death penalty. The principal witness on this issue was Craig Haney who is a social psychologist at the University of California at Santa Cruz.

         Dr. Haney testified that the process of death qualification results in capital juries which are biased in favor of the prosecution. There are five reasons for this opinion. (1) Death qualification tends to exclude women and minorities who are more likely to oppose the death penalty than white men. (2) The jurors who emerge from the death qualification process tend to be more conservative than average on issues related to criminal justice. (3) Due to these inherent biases, a death penalty qualified jury is more likely to convict on the issue of guilt than juries that sit on other criminal cases. (4) Jurors who are "death qualified" are more likely to impose the death penalty than other jurors. (5) The process of death qualification itself tends to promote death penalty verdicts because of the psychological effect of the questions asked and the answers provided by prospective jurors. Haney Ex. 2 (Rule 16 disclosure, pp. 42-43).

         Dr. Haney's testimony supported all of these conclusions as did the exhibits admitted in connection with his testimony. The first claim is that identifying and excluding jurors who hold views against the death penalty stacks the deck in the words of Justice Stewart in Witherspoon. This was precisely the issue which also concerned the Court in Wainwright and Lockhart. A substantial portion of the American population opposes the death penalty. In recent years, the percentage has ranged from 47 percent (1967) to a low of 16 percent (1995) to a more recent figure of 33 percent (2015). See Haney Ex. 2 (Gallup poll results 1937-2015). If these jurors are excluded as "substantially impaired" in their willingness to impose the death penalty, then the remainder of the population no longer represents the views of the general population.

         The Witherspoon decision expressed a concern that social science data was "too tentative and fragmentary to establish that jurors not opposed to the death penalty tend to favor the prosecution in favor of guilt." 391 U.S. at 517. In 1986, in the Lockhart decision, Justice Rehnquist offered a similar criticism. He observed that the petitioner had offered only six studies which "purported to deal with the central issue in this case, namely, the potential effects on the determination of guilt or innocence of excluding 'Witherspoon-excludables' from the jury." 476 U.S. at 170. Of these, three were previously before the Court in Witherspoon. The new studies were of randomly selected subjects, not actual jurors who had served in death penalty cases. None considered the problem of "nullifiers" who harbored "deep-seated opposition to the death penalty." 476 U.S. at 171. The majority found the social science to be unpersuasive. The question for this court is whether new research since McCree supports reexamination of the issue.

         Since at least 1980, Dr. Haney has worked to fill in the gap in the scientific record. With respect to the compositional bias of the death-qualified jury, it can no longer be seriously questioned that panels who have announced their openness to a death penalty verdict and have been selected on that basis are more likely to convict than jurors who more closely mirror the full range of moral values in our society. Since 1986, the social science literature includes the following:

a. Moran and Comfort, "Neither 'Tentative' nor 'Fragmentary': Verdict Preference of Impaneled Felony Jurors as a Function of Attitude Toward Capital Punishment, " 71 Journal of Applied Psychology (1986) (Haney, Ex. 10).

         The Moran article surveyed the existing studies of mock jurors commencing with the three studies considered in Witherspoon and bringing the survey current to 1986. On the basis of ten studies conducted over as many years, the researchers concluded that "[i]n our opinion, there is abundant evidence to conclude that death qualifiable persons are more likely to hold attitudes that alter their behavior as mock jurors and incline them toward conviction. It is also probable that the death qualification process activates such attitudes and/or socializes venire members to a conviction prone culture." Id. at 148. Echoing the nearly contemporaneous criticism in the Lockhart majority opinion, the authors expressed doubt over the validity of attitudinal findings from mock trials. They turned their attention to two studies of actual jurors.

         One study conducted in 1978 considered the attitudes of jurors who had served on state felony juries in Miami, Florida. Three hundred and nineteen (319) out of 1, 500 jurors returned their questionnaires. The authors found that jurors who strongly favor capital punishment are "differentially authoritarian in the classical sense; hold authoritarian, anti-civil libertarian attitudes toward jurisprudential issues, are more conventionally socialized, that is, regard the rules, values, and prohibitions of conventional society as personally mandatory, and have more anomie, that is, regard themselves as relatively powerless and isolated in a normless society." Id. at 150. Women who strongly favor capital punishment "evidence additional characteristics consonant with authoritarianism. They are more rigid, belong to more dogmatic churches, and believe in imminent justice, that is, that one gets what one deserves." Id. at 150. The study focused on the relation of the likelihood of conviction and attitudes toward the death penalty. Women, but not men, who favored the death penalty were more inclined toward guilty verdicts. The authors described the "marginally significant association of attitude toward the death penalty and conviction proneness in the whole sample of impaneled jurors as converging with other mentioned findings to support the contention that death qualified jurors are conviction prone." Id. at 150.

         The second study was based on questionnaires mailed to Miami, Florida felony jurors in 1982-83 who had recently served on capital juries. Eight hundred and seventy-five (875) surveys went out; 346 responded. The results were broadly consistent with the prior study. Jurors who favored the death penalty "were more likely to be male, wealthier, white, married, home owning, Republicans of conservative political persuasion. They are less likely to report any unpleasant experience with the police. These jurors who favored capital punishment also perceived themselves to have participated more in their juries' deliberations." Id. at 152. They were also "predeliberationally inclined to convict in felony trials." Id. at 152.

         In reviewing the results of both studies the authors concluded that "jurors from undifferentiated felony trials who more strongly favor capital punishment are significantly more likely to favor conviction." Id. at 153.

         b. Haney, Hurtado and Vega, 'Modern' Death Qualification, Law and Human Behavior, " Vol. 18, No. 6 (1994) (Haney Ex. 12).

         This article describes an opinion survey conducted by telephone of 498 residents of California. They were asked approximately 40 questions concerning their attitudes toward the death penalty. The study sought to determine the percentage of potential jurors who would be excluded under the more relaxed standard of "substantial impairment" adopted by the Supreme Court in Wainwright. It was also one of the first studies to consider the exclusion in percentage terms of potential jurors who automatically favored the death penalty in all capital cases. The total excludable group was just below 20 percent, roughly evenly divided between people who strongly favored and opposed the death penalty. The authors found that members of minority groups were disproportionally represented among the excludable group because of views opposing the death penalty.

         c. Allen, Mabry, and McKelton, "Impact of Juror Attitudes about the Death Penalty on Juror Evaluations of Guilt and Punishment: A Meta-Analysis, Law and Human Behavior, " vol 22, no. 6 (1998) (Haney Ex. 14).

         The authors conducted a methodical survey (meta-analysis) of the social science literature concerning the compositional effect (bias arising from death penalty qualification) as well as bias arising from participation in the voir dire process. The meta-analysis is a formal, statistically-based method of studying the convergence of research results.

         Fourteen studies met criteria for examination. The authors concluded that "[t]he average effect indicates that persons favoring the death penalty were more likely to favor conviction of a defendant... This average effect was significantly different from 0...". Id. at 723. The authors hedged their bets due to the variation in studies and methods. "Heterogeneity indicates that the average effect should be interpreted with caution since the presence of a moderator variable is likely." Id. at 723.

         In summarizing the outcome of their study, the authors expressed confidence that attitudes toward the death penalty affect the likelihood of conviction. "The results indicate that the more a person favors the death penalty, the more likely that person is to vote to convict a defendant." Id. at 724. The literature does not reveal the cause of the bias. The authors echoed the criticism of studies of potential juror attitudes expressed by the majority in McCree. They found support across the literature for a conviction-prone bias arising from the exclusion of jurors based on personal views in opposition to the death penalty. "The conclusion flowing from previous research in this area is that the systematic exclusion of a part of the juror pool more likely to acquit biases the process of deliberation in favor of conviction." Id. at 724. These findings relate to juror bias at the outset of the case - prior to deliberations. The authors found inadequate data to determine whether the initial bias of the jury in favor of conviction could be expected to diminish through the process of deliberation. They were also unable to identify the underlying beliefs which "cause both a belief in the death penalty as well as a conviction proneness." Id. at 726. But despite these unanswered questions about the cause of the bias in favor of conviction, the authors were unequivocal in their determination that social science studies have established that "the use of screening during voir dire creates a jury more likely to convict a defendant than would normally occur if the question were not used to screen potential jurors." Id.

         These three studies are consistent with the work that preceded and has followed them. More recent research has focused on racial imbalance and the effective exclusion of African-Americans from capital juries. See Haney Ex. 2, p. 46 (Rule 16 disclosure). There are no studies before the court which suggest that this compositional bias effect is exaggerated or incorrect. The defense has established as a factual matter that death-qualified juries have a disposition towards conviction which is significantly greater than the attitude of juries who have not passed through the filter of death qualification.

         The second factual claim made by Dr. Haney is that the experience of death penalty voir dire makes jurors more likely to impose the death penalty. Several studies before the court address this issue.

         d. Haney, "On the Selection of Capital Juries: The Biasing Effects of the Death-Qualification Process, " Law and Human Behavior, Vol. 8, Nos. 1/2 (1984) (Haney Ex. 9).

         In this article, Dr. Haney describes a study of sixty-seven men and women eligible for jury service. They were shown one of two videotapes intended to simulate the experience of voir dire. One videotape included the process of death penalty qualification, including the exclusion in front of the rest of the panel of two pool members who expressed opposition to the death penalty. The study concluded that "exposure to death qualification increased subjects' belief in the guilt of the defendant and their estimate that he would be convicted. It also increased their estimate of the prosecutor, defense attorney, and judge's belief in the guilt of the defendant. And it led jurors to choose the death penalty as an appropriate punishment much more frequently than persons not exposed to it." Id. at 128-129.

         e. The Capital Jury Project

         In addition to Dr. Haney's testimony, Dr. Wanda Foglia testified concerning the work of the Capital Jury Project ("CJP"). Dr. Foglia is a law professor at Rowan University who conducts social science research in the area of criminology. Over the course of some 15 years, members of the CJP interviewed 1, 198 jurors who had served in 353 capital trials. This work was funded by the National Science Foundation and occurred in fourteen states. The empirical research was exhaustive and painstaking. It was performed through detailed questionnaires and interviews with actual jurors. The research provides very strong evidence of three primary findings derived from seven specific problems. First, the process of death qualification at voir dire produces juries which are biased in favor of imposing the death penalty. This occurs both because jurors who are opposed to the death penalty are excluded and because the voir dire discussion itself creates an expectation in the minds of many jurors that the outcome of the case is likely to be the death penalty. Second, in the course of trial, a majority of jurors make up their minds about the death penalty before completing the conviction phase. In many cases, the later balancing of aggravating and mitigating factors which Gregg relied upon to distinguish defendants who truly deserve death ...

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