United States v. Davis

DeMOSS, Before PARKER and DENNIS, Judges. Circuit PARKER, ROBERT Judge: M. Circuit Defendant-Petitioner, Len Davis (“Davis”), has filed a motion for clarifica- tion of this previous Court’s writ of manda- issued July On mus, or, issuance of alternatively, for the directing the district of mandamus writ overturning mandamus writ of second himself represent Davis to court to allow inde- appoint an court’s decision capital case. phase of this in the public represent pendent counsel Mr. Davis has a Sixth that We determined proceeding penalty phase in the interest represent himself right to Amendment rea- following the case. For by the specified trial as during penalty the sons, issue the writ. we Faretta, States United authori- court the gave we the district but HIS- AND PROCEDURAL I. FACTS The case standby counsel. ty to appoint TORY the district back to was then remanded mur rights of civil Davis was convicted court. §§ 241 and der in violation of U.S.C. court the district August On appeal, to death. On and sentenced Laurie White appointing an order issued but reversed upheld the conviction we counsel at independent to serve as an for a new and remanded death sentence to According case. phase of this penalty Causey, penalty trial. United States order, counsel is to independent (5th Cir.1999). Upon re F.3d 407 public” represent the “interest mand, counsel appointed the district court penalty phase pro- full fair having a to Davis. Davis announced represent to the independent This means that ceeding. represent he desired to the court that mitigating present traditional counsel will trial. He also during penalty himself jury of Davis to the at the factors in favor that he does not want position took the trial. penalty evidence traditional present trial, but will focus Davis moved the during On October manda- strength clarify July attacking on Court to instead order, alternatively, to issue a sec- guilt. as to mus government’s case of mandamus to district ond writ Far holding hearing pursuant After appointment of an inde- overturning California, 422 etta v. motion, In the Petition- pendent counsel. (1975), L.Ed.2d 562 the district ap- the district court’s er contends repre that Davis’s decision to court found independent an pointment of knowingly and in himself was made sent right his Faretta “completely eviscerates However, the district court telligently. agree. pro himself se.” We represent right the Faretta to self- concluded Therefore, we issue this second writ to criminal representation does not extend mandamus. does, if it Davis’s sentencing, and even Eighth outweighed interests are II. DISCUSSION the death requirement Amendment A. The DistHct Court’s Rationale arbitrarily and ca imposed not be Thus, pre Reasons, district court priciously. the district its Order representing himself appointment cluded Davis that the court decided standby counsel to assume not conflict with ordered counsel does pen a full representation prepare right represent full himself because Davis’s present any a writ of alty phase sought defense. Davis Davis would still be allowed The district court compelling mandamus in this Court evidence he desires. full rein that it would allow “Davis permit self-representation court to stated He voir dire penalty phase. instead. statements, jurors, opening question make violates Davis’s Sixth right Amendment witnesses, witnesses, call introduce evi- An self-representation. individual’s consti- dence, objections and a clos- make represent tutional himself is one of he or not ing argument, all desires to do great weight and importance considerable do, appropriate procedural within the and in justice system. our criminal This However, evidentiary rules.” the court certainly outweighs an judge’s individual allowing “full rein” did found that Davis limited discretion to amicus coun- po- not mean that he could silence “other sel when that yield will in the from pre- tential voices courtroom” presentation to the directly con- senting they helpful evidence deemed to be approach tradicts the undertaken jury. defendant.1 justified The district court its determi- that rights nation Davis’s Faretta are not 1. Proper Role the Trial Court in- undermined the of an by opining counsel that dependent both outset, At the we note that the trial government judge play the and the a district court has misconstrued proper its penalty role the trial that is similar to conducting role in the trial independent play. the role an counsel could overstating parameters the within which a (1) gov- court noted that the 614(b) judge can question witnesses. Rule obligation has an miti- produce ernment permits the Federal Rules of Evidence well as gating exculpatory as evidence to judges question A witnesses. trial if the fact finder that serves the ends of judge’s questioning permis witnesses is (2) justice; judge may the trial inter- sible if aimed at clarifying the evidence or pose questions to witnesses to elicit evi- managing trial. United States v. might present- dence that otherwise not be Williams, (5th 809 F.2d 1087 Cir. ed. court The district reasoned that: 1987). counsel, independent An identi- Davis, as not with fied associated could however, judge’s A questioning, question likewise evidence and appear should never evince or to evince witnesses, providing relevant informa- partiality to one side over the other. See helpful jury’s tion decision. Just Reyes, U.S. v. 227 F.3d 265 Cir. the government’s obligation to dis- 2000) (“[t]he ju primary limitation on this mitigation close evidence and the investigatory power dicial is that it must prerogative question wit- Court’s be for the purposes undertaken of benefit- not nesses do interfere with Davis’s Far- ting jury in its understanding of the right, partic- etta neither would evidence, appear and the court not ipation of independent this counsel. Martin, v. partial”);

be 189 F.3d B. The Sixth Amendment Violation (7th Cir.1999)(“a judge’s discretion to A question witnesses is not unfettered. find that

We the district court’s appoint independent judge decision to an cannot assume the role of an advo view, actually 1. The district court envisions the conflict law." this In our instruction presenta- between counsel's compounds problem gives as it the inde- strategy tion and Davis’s trial will be amelio- pendent presentation counsel's an aura of su- by instructing rated that the inde- periority presented by over whatever is Davis, pendent represent counsel does not prosecution and the defense. required “by participation but rather her gov when the special prosecutors side.”); v. States United for either cate In Na prosecute. F.3d elects not Tilghman, ernment judges (D.C.Cir. trial (D.C.Cir.1998)(noting Smith, F.2d 1069 v. than appearance of preserve strive must 1984), whether Circuit considered D.C. the side of err on and must impartiality authority to order had a district court intervention). For exam from abstention of the United States Attorney General questions which not ask judge should ple, conduct, pur investigation preliminary of witnesses. or disbelief his belief indicate § 592 of Ethics to 28 U.S.C. suant F.2d 859- Wyatt, 442 States United only purpose of the Act. The Government (D.C.Cir.1971). to enable a investigation was preliminary opinion, we July concerning In our to the court report to made be may interpose court that the district appoint noted lack thereof for the the need or during witnesses questions to The D.C. independent counsel. ment of an court construed The district trial. court order reversed the district Circuit “to elicit evi as an invitation statement ap special prosecutor which started present otherwise might dence Id. process. pointment implied further ed.” The district Application Matter An to elicit evidence it has the Counsel, 596 Independent Appointment to that of an in a manner similar witnesses of (E.D.N.Y.1984), the district F.Supp. 1465 counsel. authority that it had no court determined the court’s disagree with district We prose- counsel to appoint independent to statement. understanding previous of our government giving informer for cute interpose ques- not court shall The district In statements. false false evidence penalty the trial during to tions witnesses of Department the Justice Application, one side or partiality to which demonstrate in- government the had declined to indict role in The district court’s position. one however, argued applicants, judge, of not former. The trial shall be one the power had the inherent to advocate. that the court prosecutor. Judge Glas- special Statutory Authority or 2. Absence of for rejected this contention several ser Authority. Case Law reasons. provides no federal The district court First, noted the Judge Glasser that an inde- statutory authority appointing for Watergate in the cases of O’Brien judges mitigation present to evi- pendent counsel the to v. The Finance Committee Re-Elect phase in of a dence (D.D.C. al., President, No. 1233-72 et Civ. Instead, district court relied case. 25,1972) Liddy, Sept. and United States courts civil cases which federal upon (D.D.C. November No. 1827-72 Crim. curiae to assist permitted amicus 1972) judicial ap- no basis for found closely proceedings. We scrutinized Id. at pointment special prosecutors. of remotely None are curiae” cases. “amicus Second, the instant fed- to the situation in he determined no analogous Therefore, we deem these cases to judicial appoint- case. provided statute eral limited value. precedential be of prosecutor indepen- special ment of a counsel under the circumstances dent scenario, analogous the reverse but In Third, expound- he the case. Id. at 1470. have addressed the federal courts also separation powers problems upon have the to ed judges power whether judicial appointment likely that would arise from this Circuit would allow such prosecutors.2 appointments. Id. special at 1470-71. Circuit, In this we have not specifically stated, As we have previously judiciary’s alleged addressed inherent special prosecutor cases are directly not to power appoint special prosecutors.3 analogous to instant but they Cox, However, in States v. United F.2d instances, remain instructive. In both Cir.1965), denied, cert. judge district court based the decision to 1767, 14 L.Ed.2d 700 appoint special prosecutor or indepen (1965) curiam), (per we held that a district dent alleged judi counsel on an inherent power require lacked the power, statutory cial authority. There Attorney sign States indict United is little distinction between special prose ments, thereby dispelled cutors special (independent) the notion appointed the district court had the power evidence calculated to Therefore, aid the compel exacting the executive branch to initiate defense. appellate scrutiny applied judicial prosecution.4 ap pointment special prosecutors must also grounded holding separa- We the Cox on applied to the instant case. (“It powers tion of concerns. Id. at 171 follows, as an incident of the constitutional judiciary’s alleged “inherent separation powers, the courts are power” appoint special prosecutors II, not to interfere with the free exercise of clashes with Article section 3 of the ’ discretionary powers attorneys United Similarly, States Constitution.5 of the United States their control over alleged district court’s inherent author view, prosecutions.”). ity criminal our al- to appoint independent counsel clashes lowing judges appoint special petitioner’s federal with the Sixth Amendment situations, prosecutors government rights. when the elects Faretta In both the prosecute not to prevails would contravene the Cox Constitution over “inherent Therefore, holding. highly judicial power” we find it un- argument. defendant, Judge opinion

2. against Glasser's memorandum dismiss the indictment the order were later vacated propriety because the Second we did not address the of the dis applicants judge's Circuit determined that the did not trict court decision to effectuate the standing apply have appointing special prosecutors. of denial Id. Appointment counsel. See In at 514. of Counsel, (2nd dependent 766 F.2d 77 Cir. 1985). Nevertheless, Cox, the rationale in the dis grand jury 4. In asked the United opinion persuasive. trict court’s attorney sign States to draft and true bills of against indictment certain individuals. The Cowan, attorney, acting 3. United States v. United In 524 F.2d 504 States on instructions General, 1975), Attorney Cir. we considered a case a from refused. The dis- in which attorney judge grant trict court ordered the United States federal district court refused to an agreed sign to draft and such instruments. The Unit- prosecution ap dismissal of a attorney again. ed States once pointed private special refused The prosecutors to contin attorney district court held the in civil con- prosecution ue of the action. inAs the case bar, tempt. Id. at 170. justified judge at the district his decision appoint special prosecutors judicia on the II, ry’s power protect public deposits inherent 5. Article in section 3 the law en- power by provid- terest. Id. at 507. we Because determined forcement in the President judge abused his discretion that he "shall take the Laws be Care that faithfully power under Federal Rule of Criminal Procedure executed." enforce the No 48(a) by denying government’s judiciary by motion to laws is vested Article III. that the teaches us right. tation Faretta and Nature Strength The Self- of personal is a right Right Representation upon merely impinged It be right. cannot analysis also misses The district court’s judge, may have society, or because it to take into con- the mark because fails accused as to of with the opinion difference and nature of the strength sideration the evidence, any, if should be of type what Faretta, right self-representation. in a trial. presented expounded upon Supreme Court The right personal. “The to defend is history passage at the time of the defendant, lawyer or the and not its underpinned Amendment which Sixth State, personal conse- will bear right the text the imply decision to the de- a conviction. It is quences self-representation. fendant, therefore, who must be free evidence led to explained that all historical par- in his personally to decide whether self-repre- the conclusion that advantage. is to his ticular case counsel very heart of the sentation was at his own Faretta, although And he conduct Amendment. U.S. Sixth detriment, Indeed, ultimately to his own defense the Framers of ‘that to counsel his choice must be honored out “always conceived of the accused, which is the respect an for the to be for the individual ‘assistance’ ” option, defending at his himself.” of the law.’ Id. at used lifeblood Allen, Id. Illinois v. (quoting S.Ct. 2525 350-51, judge appointed The district (1970) (Brennan, J., con- L.Ed.2d wants the independent counsel because she curring)). complete picture possi to have a of all in Davis has indicated that he In her mitigating ble traditional factors. risky view, employ admittedly tends to strat society’s interest in a full and fair only egy during penalty phase. can Instead capital sentencing proceeding evidence, aggravating presenting if all and miti traditional possible served jury. strength he to attack the gating presented factors are intends noble, certainly government’s guilt.6 it can case as to his This is While this notion is Davis has specific with tactical decision.7 squared self-represen- not be Davis’s strategy, right that Davis we find that Davis has the 6. There is evidence in the record occasions, has, threatened that he on various penalty in the manner of conduct his defense during pen- present any will not evidence choosing his "for it is he who suffers the However, brief, alty upon it trial. based his Faretta, consequences the defense fails.” if utilizing appears though Davis will his Therefore, 422 U.S. at 95 S.Ct. 2525. if argument during penalty "residual doubt" chooses, he so Davis has the constitutional trial. also in the record to There is evidence by argu- right implement legal strategy his prefer the death indicate that Davis would ing he should receive the to the penalty imposed sentencing stage. to be at the penalty. death he receives the death Davis reasons that if arguments concerning penalty legal his suffi- 7. The district court has found that "residual ciency of the will be scrutinized evidence mitigating guilt legitimate doubt” as to is closely appeal. more on His conviction will argued during penal- appropriately factor greater being have a likelihood of re- then ty phase capital of a case. The issue of resid- Although deter- versed. the district court has appeal ual doubt is not before us in this mined that Davis's actions demonstrate express regarding we no view the correctness penalty, he invites the death Davis has consis- ruling regarding court's residu- district tently that he is not on a suicide maintained legal qualifying legitimate mitigating al doubt as a mission. Whatever the merits of Davis's (1993). quite it clear that he does not want grant peti made We therefore mitigating traditional evidence to be tion. Nevertheless, his behalf. presented on We reiterate appointed

the district court has the inde- pendent specifically pur- may appoint standby counsel for the counsel for However, pose presenting penalty phase a full Davis if appropriate. during the trial, defense which will utilize traditional miti- penalty the district court shall not such, gating strategy factors. As Davis’s standby allow counsel to interfere with independent is direct conflict with the self-representation Davis’s right. Any at approach. right counsel’s Because Davis’s tempt standby present counsel to tradi encompasses (against tional evidence right strategy, to direct trial the district Davis) wishes would also violate Davis’s impose independent court’s decision to right Faretta Myers this writ. See v. proceedings counsel into these is over- Johnson, (5th 76 F.3d turned.8 Cir.1996)(quoting Wig from McKaskle v. 178) (“If

gins, 465 standby U.S. coun participation sel’s over the ob defendant’s III. CONCLUSION jection effectively allows to make counsel right The core of a defendant’s or substantially any signifi interfere with se is his pro representation ability pre cant ... right tactical decision the Faretta actual control he serve over case eroded.”). is jury. McKaskle chooses GRANTED, ISSUED, Wiggins, Petition writ (1984). 79 L.Ed.2d This is so sentencing action REMANDED for a pro- regardless society of whether would bene ceeding ap- without the assistance of the having presentation fit from a different of pointed independent counsel.

the evidence. Because will be Davis

stripped preserve of his actual DENNIS, Judge, dissenting: Circuit trial if control over defense The ultimate issue is whether convict- ed federal murder defendant has stand, allowed to we conclude that Davis the absolute to choose death as his indisputable right has a clear and to man sentencing and thus turn his hear- adequate damus relief and no alternative Penalty under the Federal Death Act to mandamus exists. In re: American Cir.1992), (“FDPA”)1 Airlines, Inc., of 1994 into a charade. The 972 F.2d majority misinterprets ig- rt. denied sub. nom. the record and Northwest ce Airlines, Airlines, Inc., fully supported Inc. v. American nores the district court’s 912, 1262, fact, findings 122 L.Ed.2d which S.Ct. show Davis that, jury assessing long voluntarily the factor for to consider in as as he has and intelli- himself, punishment. gently represent given chosen to he is opportunity employ strategy, the own his Nothing opinion in this should be construed be, may it without from whatever interference Davis as indication that we think his acting at the behest Indeed, strategy winning defense is a one. it judiciary. However, foolhardy. be our task is not judgment upon to cast of Davis’s wisdom §§ 1. See 18 U.S.C. 3591-3598. strategy. simply Our task is to make sure by pre- to incur the death

intends I. OVERVIEW adversary trial defense whatso- senting no error, in this majority legal The commits majority grievously errs ever.2 The that a impression, by holding case of first cases as Supreme Court’s interpreting capital mur- federal defendant convicted of right of a criminal defendant’s holding that sentencing hearing may, prior to a der that the is absolute and self-representation FDPA, his under waive conducted powerless to exer- trial court is therefore and assert his to counsel supervision regula- any significant cise in- for the purpose I right. use of that no curring penalty by presenting tion of the defendant’s the death The sentencing hearing.3 at the defense emphatically dissent. respectfully but at trial level causes eyes seek a death verdict majority closes its to the fact that 2. The disintegrate. strategy, adversary system to Neither adversary trial that he Davis has no claims, instead, asking jury only post-conviction party will be to consider have and, strategy, important, Response he is ac- of National Asso- most sentence of life.” tively seeking Lawyers rather than a a death sentence ciation of Criminal Defense as Ami- 14-15. Credit- Dis- Supporting traordinary vacate a writ of mandamus to parties "Both in this case seek the same out- is and district court decision that not come from the district court—a of sentence actively indisputably wrong, a third death.... decision to I dissent for time. Petitioner’s adversary an criminal trial to make a a criminal defendant’s de- majority conceives an insu- self-representation to be right Although to fense as we know it.... by the that is not diminished perable right many in the Amendment in so stated in the autono- change defendant’s words, dramatic right self-representation —to resulting from his criminal my interest personally make one’s own defense —is conviction; right that so impregnable necessarily by thus implied structure fairness, in the national interest outweighs way of the Amendment.”5 In no did the in accuracy, equality capital and federal Court, Faretta or other ever permits that it of sentencing proceedings suggest self-representation can be regulation supplementa- significant no from the make a separated right de- courts; right that is by tion the trial and negatively fense and used to eviscerate the con- perfect and untrammeled that the so right basic Sixth Amendment resist the may, within his victed offender attack, prosecution’s majority pres- as the discretion, complete use it either to make ently holds. or to condemn himself to death. defense the right self-representation Because of majority’s concept sharp- But the differs implied inherently part and ly right self-representation from the right Sixth Amendment to make a de- expounded by Supreme Court. fense, recognized Court has Faretta explained “[t]he many exceptions qualifications and to the compact Amendment includes a Sixth exercise of that enable rights necessary to a full statement prevent being trial courts to it from used right self-repre- and that the defense” right to harm or defeat the basic to make merely sentation is one of the constituent example, point- a defense. For the Court absolute, It is not an free-stand- rights.4 Faretta when the ed out even de- run ing right that can counter to its right fendant seeks to of self-rep- use source, right the Sixth Amendment proper purpose for the resentation make a defense. The Court made this defense, making a the trial court must very rights clear when it said: “The determine that the defendant’s waiv- first notice, confrontation, compulsory pro- knowing er the assistance of counsel is cess, together, guarantee taken when intelligent and that the defendant is charge may a criminal be answered in a disadvantages of dangers aware of the now considered fundamental manner self-representation.6 judge And “the trial jus- the fair administration of American self-representation by a de- terminate through calling interrogation tice— engages in seri- deliberately fendant who witnesses, of favorable the cross-examina- witnesses, ous and obstructionist misconduct.”7 The orderly tion of adverse and the short, objection “may trial court over introduction of evidence. —even ‘standby counsel’ right in the Amendment constitutionalizes accused'— 683, Nixon, Faretta, 4. 422 U.S. at S.Ct. 2525. United States v. (1974) ("The 41 L.Ed.2d 1039 818-19, Id. at S.Ct. 2525. See 5. Martinez develop all relevant facts in the adver- need to California, Appeal v. Court compre- sary system is fundamental and both (2000) 120 S.Ct. 145 L.Ed.2d 597 hensive.”). ("Our only to conclusion in Faretta extended a defendant’s 'constitutional to conduct Faretta, 422 U.S. at Accordingly, specific our his own defense.’ holding to defend was confined at 834 n. 95 S.Ct. 2525. 7. Id. (citation omitted). trial.”) See also oneself that, Faretta opinion recognized, if and the accused “[a]s to aid the accused when rep- requests help, and to be available right self-representation is not abso- in the that termi- resent the accused event listing exceptions lute.”11 After several self-representa- nation of the defendant’s qualifications right self-repre- and to the of Moreover, necessary.”8 contrary tion is sentation, the Martinez Court concluded holding in majority’s present to the in government’s that “the interest ensur- trial court’s open Faretta left integrity efficiency of the trial problems option mitigating of some of outweighs at times the defendant’s interest self-representation by “ap- from resulting Moreover, acting lawyer.”12 in as his own in the qualified lawyer a to sit pointing holding require in that Faretta does not a case as the traditional ‘friend recognize right state to a constitutional ”9 court.’ self-representation appeal on direct from a affirmatively recently, More the Court conviction, criminal the Court in Martinez recognized option and the amicus counsel gave significant reasons that are to the limitations on the observed other present case: Wig- in self-representation McKaskle defendant, The status of the accused gins: of presumption who retains innocence A ac- pro generally se defendant must throughout process, changes trial cept any help unsolicited or hindrance dramatically jury when a returns judge come who guilty verdict.... witnesses, question call chooses to prosecutor faithfully from the who exer- duty overriding evidence favor- ... Yet the state interest

cises his defense, plural from the in able the fair and efficient administration of speaking voices “for the defense” justice strong remains as at the trial as defendant, trial of than one or more Thus, level. are with- States appointed from an amicus counsel in their discretion to conclude that the assist the court.10 government’s outweigh interests an in- appellant’s vasion of the interest in Accordingly, Ap- Martinez v. Court self- of peal California, flatly representation.13 the Court stated Furthermore, self-repre- dangers disadvantages 8. Id. aware "[t]he made dignity sentation is not a license to abuse the self-representation. judge may A trial also comply of the courtroom ... not to with [or] terminate procedural relevant rules and substantive standby counsel—even over the defendant’s law.” Id. objection necessary. We have further —if standby may participate held 7, J., (Burger, 9. Id. 846 n. 95 S.Ct. 2525 C. proceedings, the trial even without ex- dissenting). defendant, press long consent of the as that participation seriously 10. 465 U.S. 177 n. does undermine (1984) (citation omitted). L.Ed.2d 122 appearance before the that the defen- representing Additionally, dant himself. 11. 528 U.S. judge duty provide the trial is under no (2000). L.Ed.2d 597 personal procedure instruction on courtroom perform any legal or to chores for the defen- 12. Id. at 120 S.Ct. 684. See id. at 161- out.”) normally carry dant that counsel would (listing 120 S.Ct. 684 some limitations (internal omitted). quotations and citations upon right: "The defendant must volun- tarily intelligently elect to conduct his defense, 162-63, require own and most courts him to 13. Id. at 120 S.Ct. 684. timely do so in a manner. He must first that he would not use majority’s decision to issue manda- The order to make an adversarial reverse the district court’s defense as contem- mus and Supreme plated protected by with all of Sixth Amend- incongruous is Instead, stated, cases; ment.14 permits right expressly it of self- he Court’s body of he intended to make no to be torn from the defense whatsoev- representation er, a right Amendment to make so as to ensure death sentence.15' the basic Sixth circumstances, and to be used to Under these the national an adversarial defense aspirations of that interest in the fair and efficient adminis- hopes defeat the majori- justice right. outweighed The tration of the defen- basic constitutionalized acting lawyer, have is- dant’s interest in as his own prior mandamus should not ty’s purpose court was not since his was to defeat or relin- sued because the district refusing quish right Amendment to make clearly indisputably wrong his Sixth pro- to assis- a defense in an adversarial criminal to allow Davis to waive his ceeding.16 present counsel and to himself. mandamus should represent tance of the court not issue for same reasons and also expressly Davis had informed spending jail death the rest of his life in he 14. After this court reversed his federal —and prison a new and remanded his case for finds life in to be more onerous. sentence trial, penalty Believing legal Len the district Davis informed errors that led to his represent that he intended to himself in scrupu- will conviction be examined more him, proceedings to the those but also consented lously facing if he has a death sentence appointed presence of "co-counsel.” The strategic Mr. Davis made the decision that government first moved for a mental status put mitigating he does not want to on evi- objec- of Davis and then filed examination jury dence in an effort convince the “hybrid pro representation.” In a tion to this he should not die.... government’s objection, response to se said: Davis legal strategy ... believe that the [W]e likely undertaken which he has will result life, beg my I afraid I do not and am not Conversely in his execution. we believe already to die. I have informed the Court mitigation that if we could mount a full present defense at that I do not intend very good possibility defense that there is a trial, penalty government and the has so, being why life. we could save his That pleadings stating that filed with the Court arguing legal are we before this Court it calls into the decision is so bizarre that which, successful, position likely if would competence. question my mental our The answer lies doom client? life, Brief, Faretta decision. It is his not ours. Original 15. Len Davis’s filed given directly "The to defend is in this court on June states: accused; for it is he the conse- who suffers hearings be- At various conferences and quences if the defense fails.” Faretta v. fore district court Mr. Davis an- [the] California, S.Ct. U.S. [422 nounced that he did not intend to (1975) 45 L.Ed.2d 562 ]. evidence, participate any aspect of (June Appellant's Opening Brief at 5-13 trial, convincing directed toward 2001). juty he not receive the death should Moreover, August at an status con- penalty.... ference, explained Davis that his refusal against defend himself the death "is legal the[ ] ... Mr. Davis believes that part my strategy and I think that with the plans issues to raise in a motion for new [he death sentence it will force the Court to take Rule will of ne- motion] trial and/or my seriously.” issues a little more cessity have to be viewed much more close- ly by appellate if he the district and courts 16.As stated the district court: sentence, they facing a death than would persisted in his facing Davis has he a life sentence. While he In if were the benefit weighed intention that the not have has no desire to die he has careful- against any mitigating ly prospects evidence in the of a death sentence jurisprudence. Gregg Amendment left because that it option Georgia to the district court the open [428 remand, namely, appointing (1976)] pursued Stewart, on L.Ed.2d 859 Justices in the case as ami- qualified lawyer to sit Powell, and concluded that Stevens curiae or friend of the court safe- cus is afforded a “where discretion sentenc integrity interest in the guard the national body grave on a matter so as the hearing and sentencing and fairness of the a human determination of whether life damage that will mitigate some of the spared, taken or that discre should be not to surely result from Davis’s decision limit suitably tion must be directed and any against penal- the death make defense wholly to minimize the risk of ed so as ty- action.” In arbitrary capricious and therefore, capital sentencing, discretion Eighth Mitigating II. and the FactoRS objec must be “controlled clear and Amendment produce tive standards so as to nondis Carolina, plural- In v. North a Woodson the other criminatory application.” On ity of the Court stated hand, a this Court has also held that qualitatively penalty of death is dif- sentencing body able to must be consid a of imprisonment, ferent from sentence any er relevant evidence re Death, in long. finality, however its dif- garding the defendant’s character or imprisonment fers more from life than a background, and the circumstances of 100-year prison term differs from one of particular offense.18 only year a or two. Because of that difference, qualitative there is a corre- “Thus, Constitution, by requiring in sponding difference the need for relia- heightened degree of to the indi- fairness bility in the determination that death is vidual, greater equali- and also a degree in a appropriate punishment specific ty rationality in and the administration of case.17 death, demands sentencer discretion that emphasis sentencing generously This on individualized expanded once and se- contributed to what Justice O’Connor verely Although restricted.”19 this seem- identify would later as a ingly paradoxical result has been chal- views,20 lenged by long minority tension that has existed between it remains the the two principles Eighth sentencing body central of our Law of the Land that a Brown, 544, phase recently, of his case. Most he has v. 479 U.S. California (1987) (O'Con nothing 107 S.Ct. declared that he wants done at the 93 L.Ed.2d 934 nor, J., (internal concurring) penalty phase per- omit on his behalf at all. To citations ted). jury mit Davis withhold relevant mitigation integrity undermines Collins, judicial process, reliability defeats 19. Callins v. (1994) adversary system and outcome subverts our L.Ed.2d 435 J., (Blackmun, dissenting). justice. appropriating Davis in effect is judgment only society, himself jury (Blackmun, through properly in this can 20. See id. at S.Ct. 1127 J., view, ("In dissenting) my proper make. Davis, F.Supp.2d United States v. course when faced with irreconcilable consti- (E.D.La.2001). ignore tutional is not to one or the commands other, pretend nor to dilemma does exist, 17. 428 U.S. futility not but to admit the of the effort Stewart, (1976) (opinion L.Ed.2d 944 accepting Pow to harmonize them. This means ell, Stevens, JJ.). and fact that cannot death be proceeding, compli- sentencing fair consider relevant case must by the statutory As stated with mitigating evidence.21 ance constitutional Penry Lynaugh, “[i]n order Court requirements, so that the death determination that ‘reliability in the ensure arbitrarily imposed capri- is not in a punishment appropriate is the death ciously. order to accommodate case,’ be able to must specific interest, appoint indepen- will any mitigating give effect consider investigate counsel to dent a defendant’s back- relevant evidence penalty phase. evidence at the mitigation or the circumstances and character ground Counsel will be identified as of the crime.”22 Davis, and representing Davis will permitted whatever defense Have a III. Davis Does Not Clear on own be- appropriate he deems his Indisputable Right MaNdamus Re- half.23 lief issue, For Davis to establish entitlement to man- at the dis- presently In the order relief, only he “must not that explained: trict court damus show erred, it the district court but that independent a public has substantial indisputably Concluding erred.”24 of a full and and being interest in assured Eighth and mands of Fourteenth in accord with our Constitu- administered 1142-43, tion."). Amendments. But see id. at 114 S.Ct. J., (Scalia, L.Ed.2d ("Surely 438 U.S. 98 S.Ct. 57 concurring) a 1127 differ- wit, (1978) (plurality opinion). Eddings v. 973 In itself—to that ent conclusion commends Oklahoma, 71 judicially one of these announced at least (1982), majority L.Ed.2d 1 a of the Court cause the which irreconcilable commands may pre- a be reaffirmed that sentencer not explicitly prohibit its text what Constitution may considering, not refuse cluded [D]eath-by-injec- permits wrong.... must be consider, mitigating relevant At- factors. pretty next to ... ... looks desirable tion tempting, perhaps, to harmonize "two currently before us of the other cases some Eighth principles" of the Court's central did not select as the which Justice Blackmun supra ac- jurisprudence, see text Amendment that the death for his announcement vehicle Powell wrote: companying note Justice penalty always exam- is unconstitutional —for Thus, from the the rule in Lockett followed raped by 11-year-old girl ple, the case of the of the Court and from the earlier decisions by stuffing pant- then killed her four men and capital punishment Court's insistence that quiet a throat. How enviable ies down her fairly, con- imposed and with reasonable be injection compared with lethal death By holding sistency, at all.... or not that!”) (citation omitted). capital per- cases must the sentencer mitigating relevant mitted to consider Ohio, Burger Chief Justice 21. In Lockett factor, recognizes the rule in Lockett stated: consistency produced by ignoring individu- deciding perfect procedure for There is no consistency. al differences is a false authority governmental in which cases S.Ct. 869. Id. impose death. But a be used to should 302, 328, 109 S.Ct. prevents sentencer in all 22. 492 U.S. statute that Woodson, (1989) (quoting capital giving independent miti- L.Ed.2d 256 cases from 305). U.S. at gating weight aspects the defendant's circumstances character and record and to Davis, F.Supp.2d mitigation 23. United States v. proffered cre- of the offense II"). (E.D.La.2001) ("Davis death will be ates the risk that the may call imposed spite of factors which Corp., 272 F.3d re: Santa Fe Int'l penalty. When the choice for a less severe Cir.2001) (internal death, quotation omit- that risk is unac- between life and ted). ceptable incompatible with the corn- burden, major- risprudence, pen- that Davis satisfied this which holds that a death ity purported alty relies on a absence of statu- not limit the scheme sentencer’s an tory authority analogy or case law mitigating consideration of evidence and that it draws between the district court’s mercy corresponding discretion to extend judicial appointment spe- order and the in given case.30 prosecutors. cial Both lines of reasoning typical contemplated by In the case majority’s are flawed and reflect the mis- FDPA, presents the convicted defendant understanding of the nature and scope of mitigating factors that allow the self-representation. Davis’s to consider a life sentence. But when the malfunctions, adversary system as it does Statutory Authority A. and Constitu- here, the district court is not free to disre- Interpretation tional gard statutory the constitutional and re- Finding statutory authority “no federal quirement evidence and a appointing counsel to So, I life sentence be considered. while do present mitigation evidence in the suggest convicted defendant can case,”25 phase of a the majority represent never and pursue himself conspicuously ignores the Federal Death in strategy sentencing phase own of a Penalty Act of 1994.26 Title 18 U.S.C. capital attempt Davis’s admitted 3593(b) § provides when a criminal secure a death making sentence guilty defendant is found or pleads guilty defense impermissible creates the risk that death, punishable by to an offense imposed death will not be in presiding judge “shall a separate conduct accordance with constitutional and statuto- sentencing hearing to determine pun- Thus, ry I law. do not think that imposed.”27 determining ishment to be In court, in appointing independent justified, whether a sentence of death is purpose present- counsel for the limited the finder of fact at sentencing hearing evidence, ing mitigating reached an im- any mitigating “shall consider fac- ” 28 proper balance between the conflicting ordinary, tor.... The mandatory self-representation Eighth and Amend- meaning of the word “shall”29 and the ment concerns its effort to maintain the comprehensiveness of the FDPA permit integrity of the sentencing hearing re- only one although conclusion: a defendant quired by the FDPA. may guilty enter a plea thereby and be- eligible sentence, come to receive a death As constitutional scholars have ob- he served, is not entitled to a choice of penalty. possible, conflicting “Whenever effort, This Congress’s conclusion reflects provisions [constitutional] should be rec- FDPA, in passing the to comply with the give onciled and construed so as to ef- Supreme Eighth ju- Court’s Amendment fect to Supreme both.”31 The Court has Maj. Op. 25. supra 382. 30. See Part II. See also United States v. Video, 64, 73, X-Citement 513 U.S. 115 S.Ct. §§ 26. See 18 U.S.C. 3591-3598. (1994) ("[W]e 130 L.Ed.2d 372 do not impute Congress pass legisla- an intent to 3593(b) added). § (emphasis Id. that is tion inconsistent with the Constitution 3592(a) added). (emphasis § Id. Court.”). as construed this Wetlands, Sands, 29. See Save Our Inc. v. 31. 5 Ronald D. Rotunda & John E. Cir.1983). F.2d See also Escon- Nowak, dido Mut. Water Co. Lav. Jolla Band Mis- Treatise on Constitutional Law: Substance Indians, 23.17, (3d ed.1999). § sion at 256 Procedure (1984). 80 L.Ed.2d 753 Court delivered the classic state- in a to be exercised permit assign priority consistently refused oppo- enumerated manner. “Without safeguards non-adversarial among presents This case Bill of func- nents, adversary system cannot Rights.32 self-representation between conflict defect, remedy Seeking tion.”37 The dis- Amendment Eighth attempted to accommo- interests.33 the district court of these con- reconciliation trict court’s majority’s view both the date mani- interests is stitutionally protected and the it much so that festly reasonable —so requirement Amendment Eighth admonition Clark’s to mind Justice calls within a factors be considered the Con- no war between is “[t]here As the sentencing proceeding. common sense.”34 stitution explained, district court States, the stated v. United Wheat op- system [Sixth] aim is an adversarial with that “the essential ours guarantee an effective is to Amendment The Government posing sides.... criminal defen- each advocate indepen- to “take a side.” The expected So, evaluating “in Sixth dant pro- counsel envisioned here is to dent .35 claims, in- appropriate Amendment in the fairness public tect the interest pro- the adversarial on quiry focuses proceeding by assur- integrity recognizes a Faretta cess While ....”36 the information ing that the has all right to serve as defendant’s criminal to make an informed decision.38 needed prose- opposition own advocate majority’s prior mandamus Given the it nor cuting authority, neither form of self- peculiar Davis’s upholding read to cases the Court’s other penalty. See against the death Virginia, no defense principle in Cohens v. of this ment Davis, 264, (1821): Wheat.) (6 F.Supp.2d 918 L.Ed. 257 v. 150 5 United States 19 U.S. (E.D.La.2001). My in this result then, confidence duty of the court? becomes the What think, recognition Supreme of to the con- reflects the Court's Certainly, we so construe stitution, provisions, right give exceptions to both to of self- as to effect and limitations them, possible is to reconcile ac- supra so far as it notes 4-13 and representation. See seeming repugnancy permit their and not to majority companying But neverthe- text. endeavor destroy 17, other. We must each July a of mandamus on issued writ less them, preserve true as to so to construe accept requiring court to the district 2001 meaning of the instrument. intent self-representa- waiver of counsel and Davis's Marshall, who wrote the Justice John Chief conflict between created the tion. That order Marbury opinion, previously stated in had Cohens Eighth interests that Sixth and Amendment 174, 137, Madison, (1 Cranch) 2 5 U.S. v. through ap- its court addressed the district (1803), pre cannot be “[i]t L.Ed. 60 independent amicus curiae pointment of (hat any clause in the constitution is sumed counsel. be without effect....” intended to 657, Stuart, Ohio, See, S.Ct. 427 81 e.g., Mapp Press Ass’n v. v. Nebraska 34. (1961). L.Ed.2d 683 6 L.Ed.2d 1081 (1976) (refusing Sixth Amend- to declare the subordinate, rights in all of an accused ment 35. 486 U.S. circumstances, to the First Amendment (1988). L.Ed.2d press publish). omitted). (internal quotation Id. presents this accurately, this case 33. More present posture. I remain con- in its conflict Chagra, 701 F.2d 37. United States reached the cor- district court vinced J.). Cir.1983) (Rubin, May by refus- 2001 order rect result in its waive his Len Davis to to allow II, F.Supp.2d at 798 n. 2. 38. Davis self-representation to make use counsel and representation, prosecu- the district court struck a their control over criminal ”41 case, respect tions.’ In the competing reasonable balance between the concerns, coequal government a branch of is not at thereby constitutional ef- giving Furthermore, Moreover, issue. neither the Constitu- fect because the both. a FDPA, congressional tion nor enactment com- Eighth which observes the Amend- presentation mitigating mits the of factors guidelines ment set forth in the Court, phase this case to arguably statutory furnishes a basis gov- the exclusive discretion of either the appointment for the coun- ernment or Len Davis.42 In the absence of case,39 impossible sel in I find it statutory grant a constitutional or of exclu- conclude that the district court discretionary power, sive it simply does indisputably erred. “[tjhere not follow that is little distinction B. The Analogy False special prosecutors special between Thus, (independent) counsel....”43 majority finds that the district court majority’s scholarly survey prosecutorial appointed improperly independent counsel inapposite discretion is to this case. because, analogous the reverse but “[i]n scenario,”40 judge appoint a district cannot I Although my previous adhere to special prosecutors government when the statement FDPA may provide prosecute. Although elects not to the ap- statutory basis for the of in- pointment counsel, of a special prosecutor dependent such a I disagree also with might conclusion, case viewed as a majority’s “reverse scenar- drawn from its io,” Indeed, analogy is analogy, false. the ma- false that the district court had jority acknowledges that separation power of no inherent indepen- concerns, powers not involved in agree, instead, Davis’s dent counsel. I with the prosecutor were raised in the special recognition district court’s “[a]s “ follows, context: ‘It general as an incident of the proposition, authority constitutional separation powers, that appoint independent or amicus the courts are not to interfere with the curiae counsel is broad and well-estab- discretionary free exercise of the powers lished.”44 The authority exercise of this attorneys of the United particularly appropriate States in cases that independent 39. anticipate The of counsel is from a defendant's ill-advised insis- completely conducting consistent with Faretta may and tence on his own defense be supra accompanying mitigated by McKaskle. See text appointing qualified lawyer to notes 9-10. sit in the case as the traditional 'friend of the court.' The Court does not foreclose this 168, option.”); Wiggins, Maj. Op. McKaskle v. 40. 465 U.S. 382. 7, 944, 177 n. 104 S.Ct. 79 L.Ed.2d 122 (“A (1984) pro generally se defendant must Cox, (quoting 41. Id. at 383 United v. States accept any help unsolicited or hindrance that 167, 1965)). 342 F.2d 171 Cir. ap- come from ... an amicus counsel pointed court.”) (citation to assist the omit- Supreme 42. “self-representation” Court's ted). jurisprudence support also does not the ma- jority's requirement mitigating that all evi- Maj. Op. at 383. capital dence received at the federal sentenc- ing hearing presented by be the convicted II, blessing. defendant or with his See Faretta F.Supp.2d v. Davis 180 at 799-800. See California, Louisiana, 846 n. F.Supp. United States v. 751 J„ (1975) (E.D.La.1990), (Burger, 45 L.Ed.2d 562 C. 620 and the authorities cited ("Some dissenting) damage of the we supra can See therein. also note 42. have now mitigation, we dant waives functioning proper challenge policy the better will be con- concluded a “case because adversary system of a PSI by require preparation to may be saved cooperation in ceived in investigation report) ] adversary (presentence who [ genuine of a intervention the defendant is not every otherwise case where rights represents The dis- imposition of death adversely challenging affected.”45 be might pre- merely attempts present mitiga- penalty and order refuses trict court’s by required meaningful, the posture evidence. To be the adversarial tion serve statutory provisions comprehensive and and PSI should the constitutional previ- case.46 such as to this include information relevant should (including problems mental health ous Authority Supporting Additional C. records, and rel- school hospitalizations), Order District Court’s addition, background. family evant require the State trial court could explic- cases there are no true that It is in its all evidence appointing in record place of affirming propriety itly nature such as mitigating pres- develop possession counsel independent records, records, military capital a federal school evidence in mitigating ent Further, if the PSI con- records. medical because sentencing proceeding records alert the accompanying But do so.47 and the refusal to defendant’s victed signifi- probability of this trial court nova status the res it is precisely court has the trial mitigation, cant court’s consider- that demands case with ad- to call authority persons discretion credible ation pre- This Judge as its own witnesses. us. evidence now the issues before dresses suggested has been procedure courts’ cise state examined various Berrigan in State Supreme Court Jersey appoint- the New specific issue treatment Koedatich, A.2d sen- 112 N.J. in a v. counsel (1988), appropri- recognized sup- ample and found tencing proceeding Supreme Court example, Georgia ate order.48 For for her port State, State, v. 258 Ga. Court Morrison v. Muhammad (1988). the trial court following re- S.E.2d established the of Florida If present mitigation a con- prefers where that counsel measures for cases sponsive mtnesses, miti- own calling its present refuses to rather than defendant victed the discretion possesses the trial evidence: gating mitiga- counsel with how struggle Having continued State, done Klokoc as was fairness, tion unifor- reliability, to ensure (Fla.1991) standby or to utilize pen- So.2d of the death imposition in the mity purpose.49 for this limited the defen- rare cases where in these alty Building P. Murrah Federal ing of the Alfred Wright 45. 13 al., Federal et Alan Charles June (2d City, executed on in Oklahoma was at 319 § and Procedure Practice predecessor federal His immediate ed.1984). Chagra, 2001. United States See also J.). murderer Cir.1983) (Rubin, was convicted capital punishment 701 F.2d on was executed March Feguer, who Victor 15, 1963. supra Parts II-III.A. 46. See II, F.Supp.2d at 804-07. 48. Davis See prior case law reflects dearth of 47. This exe- government had not federal (foot- (Fla.2001) 363-64 782 So.2d Timothy James since 1963. a civilian cuted added). omitted) (emphasis 53. Id. See, Bloom, e.g., People 58. v. 48 Cal.3d 54. Id. Cal.Rptr. (1989). 259 774 P.2d 698 that even interest is justice, an tion of through of innocence presumption a tains penalty case. in a death dramatically acute more changes process, the trial out Therefore, verdict.”59 court’s guilty a the district a returns when survive represent that to autonomy interests “[T]he than compelling less of a deprive are Davis conviction did not felony national interest in Faret-t the decision motivating those right. constitutional interest state overriding the “Yet a.”60 have an absolute Len Davis does jus administration efficient fair and the The dis- sentence.62 his desired right to strong throughout constantly remains” tice this, meticu- and its understood trict court appeal.61 the trial and it issues before the consideration of lous entering the defendant appeal, in an As the extraordi- demonstrates further has case capital of a sentencing phase the not issue should nary of mandamus writ Applying Mar- convicted. already been majority’s decision this case. again in case, it analogy to the by tinez retrogresses contrary plainly autonomy inter- Len Davis’s follows “capital the constitutional command compelling léss after ests, became which fairly, and with imposed punishment conviction, further diminish- been have his at all.”63 certainty, or not reasonable to he seeks purpose the which by ed is purpose His attorney. his own act as IV. CONCLUSION unreliable disengage from to neither court reached district my opinion, In a person- make counsel nor to incompetent it when May result the correct defense, to en- but rather al, adversarial particu- of this refused, facts based on the offering no de- by sentence a death sure his Davis to waive Len permit to lar reasoning of holding all. The fense at himself represent counsel and right to sanction do not Faretta hearing, and the sentencing capital seeks to who defendant by a convicted manda- issuing its first majority erred against defenseless himself render ruling court’s setting the district mus words, the auton- In other penalty. death given present proceedings, In the aside. convic- Davis’s that survived omy interests majority placed in which the situation public’s outweighed tion are now man- its issuing first administra- in the fair interest faithful necessary procedures circumvent 152, 162, seeks 120 S.Ct. 59. his conviction (2000). propriety to ensure L.Ed.2d 597 sentence, State to ask does not he 684. 60. Id. at Rather, he life. his own permit him to take the most violate two of State invites 61. Id. society of a civilized norms basic —that Marshall, Thurgood only authority Justice be invoked penal words State's to a voluntary justice, submission defendant's ends of necessary "[a] serve the where individual, not ameliorate punishment does barbaric particular of a not the ends punishment imposing such harm that only where the imposed punishment be and to values basic societal causes our pun- adequate assurance that has State justice.” Whitmore system of integrity of our for- Constitution justified. The ishment Arkansas, 110 S.Ct. accept that invitation. the State bids J„ (Marshall, (1990) 109 L.Ed.2d Id. Consequently, cases such as dissenting). do not us one before Oklahoma, 455 U.S. Eddings v. so-called defendant's involve (1982). 71 L.Ed.2d capital defendant When a "right die.” damus, the district August court’s

order appointing independent counsel for purpose

the limited presenting mitigat-

ing evidence at sentencing hearing was

not and indisputably wrong. The

majority’s contrary conclusion and second

mandamus voiding the district court’s rul- Faretta,

ing perverts ignores the national

public interest in the fair and faithful ad-

ministration of the federal punish- system,

ment and converts the sentencing

hearing into a non-adversarial criminal

proceeding contemplated by the Sixth

Amendment or the FDPA.64 ZADVYDAS,

Kestutis Petitioner-

Appellee, DAVIS,

Christine Immigration G. Service, Naturalization

Respondents-Appellants.

No. 97-31345.

United States Court of Appeals,

Fifth Circuit.

March Moreover, disintegration (“The of the adver- principle today remains if both sarial nature sentencing proceeding parties result, affirmatively desire the same jurisdictional raises serious question. See justiciable presented.”). no case is supra § note at 317 Wright et al., life sentence. See notes cus Curiae Affirmance of the infra ing on a "sui- Appointment Independent Davis's assertion that he is not trict Court's mission,” reason, ap- majority states that "it cide at 8-9. "For this it makes Counsel though utilizing pears Davis will be why joins govern- Davis no difference Mr. argument during doubt' 'residual seeking a death verdict. All that ment in trial,” Maj. Op. in an effort "to n. asking matters is that there is no one strength government's attack the case (emphasis n. 3 to consider life.” Id. at 9 guilt.” own as to his Id. at 384. But Davis’s original). that his sole motivation is to words reveal gone penalty, and he has so receive the death majority same errors adheres nothing to do at the sen- far as to threaten post-remand rulings that affected its other goal. tencing At a trial in order to realize this July dissenting this court's this case. In hearing, July the district court indi- granting and di- 2001 order mandamus cated, time, ap- its intention to for the first recting permit the district court to Len Davis point purpose of devel- amicus counsel for the represent sentencing phase himself in the oping presenting mitigating evidence. despite case his announced of this following issued the ultimatum in re- Davis penalty, I intention to seek the death ex- sponse: plained majority that both Davis and the mis- interpreted Court's decision in August go this case doesn't forward on [I]f California, Faretta [, 2001], coming the 13th ... I am in this (1975). August 45 L.Ed.2d 562 On courtroom and there will be no residual panel the same divided of this court argument, doubt examination, there will be no cross- Hardy, denied the motion of Paul Davis's opening there will no co-defendant, convicted for leave to intervene statements, already closing and I have purpose filing panel petition for the for wearing just made it clear that I’m what or, rehearing, alternatively, requesting ap- (a wearing jumpsuit) prison ]. I'm [ pointment petition of amicus curiae to file a courtroom, ... I'll come in this sit down panel rehearing, suggesting for rehear- and/or problems, absolutely will do with no August I en banc. dissented from nothing go if this case doesn’t forward Au- suggested order and that the gust the 13th. proper remedy an amicus curiae was the Furthermore, majority's even if the state- adversary system the breakdown in the that Davis is on a "suicide mission” ment government and the correct, resulted when Davis his ironic belief that a death sen- joined penal- forces to advocate for the death might ultimately tence save his life is irrele- states, ty. my colleagues again use the ex- Because response correctly vant. theAs amicus

Notes

notes April bomb- McVeigh, convicted of the Florida, jury serves ate to the adviso- nature of the offense and of ry capacity only; the trial judge makes the fender.” final decision. aWhen convicted FDPA, hand, The on the other states defendant does not the death oppose pen- presentence that “no report pre shall be alty, presentence the now-mandated inves- pared” when a guilty defendant is found tigation report facilitates an informed deci- pleads guilty punishable to an offense sion as to whether a death sentence should jury the court alone if —or death.55 imposed by providing judge the trial there is no therefore limited to —is with the available evidence or sentencing during information received him, alerting cases, in certain prob- to “the Thus, the district court hear ing.56 ability significant mitigation.” recognized importance of presenting mitigating evidence at State,50 hearing, “as In Smith v. Court only is the opportunity for it to be of Indiana found no error a trial court’s heard.”57 While Davis can certainly con refusal to special gath counsel to trol the gives, information he today’s deci er mitigating evidence at the majority sion extends his control to sentencing hearing of defendant who ne evidence, all mitigating regardless of its gotiated plea agreement called source or potential impact on the sentenc penalty. the death Although the court ing body. The district reasonably reached a different conclusion from its concluded that a death sentence obtained Florida counterpart on the propriety of in such a likely distorted manner is to fall counsel, appointed it noted that Indiana short of constitutional standards of relia court, law requires trial acting bility. through probation department, its to in vestigate the defendant’s background and Like the majority, the states that have any mitigating circumstances.51 in This taken position an absolutist on the convict vestigation “culminates in a [presentence] ed self-representation defendant’s report to be considered before determin have done so in misguided reliance on the ing the appropriateness of the death sen Supreme Court’s decision in Faretta.58 tence.” The court admitted that discov But in its pronouncement most recent on ering mitigating Faretta, evidence “is more difficult Martinez v. Court Appeal when the defendant does not to as California, wish the Supreme recognized sist, but it is not It then that “the is not impossible.”53 found that the probation absolute,” department made at the trial “[e]ven level ... “good faith effort” to uncover mitigating government’s in ensuring interest evidence despite provide Smith’s refusal to integrity and efficiency of the trial at times it and presentence concluded that the re outweighs the defendant’s interest act port and the record as a whole “reflects lawyer,” his own and that “[t]he that Smith’s death sentence was appropri defendant, status of the accused who re (Ind. 1997). 50. 686 3593(c). N.E.2d 1264 § 18 U.S.C. 51. See id. at 1276. 3593(d). § 56. See id. 52. Id. II, F.Supp.2d 57. Davis at 806.

Case Details

Case Name: United States v. Davis

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Aug 2, 2001

Citation: 285 F.3d 378

Docket Number: 01-30656

Court Abbreviation: 5th Cir.