*1 inevitably protracted motion to dis- ” Miller, Conley .... Arthur From miss
Twombly Iqbal: Play A Double on the Procedure,
Federal Rules Civil 60 Duke (2010). dismiss, 1,11 L.J. Such motions to here, questions
as is the case often include causation, reliance, “scienter, loss
materiality questions formerly would — worthy.” trial have been considered Id.
Remarkably, imposes the PSLRA what probabilistic pleading
amounts to a stan-
dard for scienter. See Tellabs v. Makor Ltd., Rights,
Issues &
(2007)
(defining “strong inference” of scienter
under the as “more than merely PSLRA
plausible cogent or reasonable —it must be compelling any opposing
and at least as intent”).
inference nonfraudulent newly-found
If evidence in a PSLRA supports previously
case dismissed (or reliance, materiality,
claim’s scienter or causation) allegation,
or loss the district
court could allow the claim to be revived. charged
District courts are with enforcing just, speedy,
rules “to secure the and inex-
pensive determination” of an action. Fed. 1. “just”
R.Civ.P. There’s a reason that
precedes “speedy.” America,
UNITED STATES
Plaintiff-Appellee, GABRION, II,
Marvin Charles
Defendant-Appellant. 02-1386, 02-1461,
Nos. 02-1570.
United of Appeals, States Court
Sixth Circuit.
Argued: June 2012. May
Decided and Filed: *4 Fisher, Barry
ARGUED: J. Office Defender, Albany, the Federal Public New York, Appellant. Timothy VerHey, for P. Office, Attorney’s United States Grand for Rapids, Michigan, Appellee. ON BRIEF: Kevin McNally, Margaret O’Don- nell, O’Donnell, & McNally Frankfort, Clarke, Kentucky, Judy Rice, Clarke & California, Diego, Appellant. for San Jo- seph Wyderko, Depart- C. United States Justice, D.C., Washington, ment of Donald Davis, McManus, A. Timothy Jennifer L. VerHey, Attorney’s P. United States Of- fice, Rapids, Michigan, Appellee. Grand BATCHELDER, Judge; Before: Chief MARTIN, BOGGS, MOORE, COLE, CLAY, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE, WHITE, STRANCH, and DONALD, Judges. Circuit KETHLEDGE, J., opinion delivered the BATCHELDER, court, in which C.J., BOGGS, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, DONALD, JJ., before. Timmerman was then 19 GRIFFIN, joined. night given baby and had birth to a 535-37), years old CLAY, delivered (pp. J. Verhage, just six weeks ear- Shannon girl, concurring opinion separate lier. Rachel told her mother she COLE, J., joined. only, in which judgment press charges because Gabrion afraid 537-55), MOORE, delivered (pp. J. that, did, kill said if he would both had she in which dissenting opinion, separate baby. But that afternoon her and her STRANCH, JJ., WHITE, MARTIN, Newaygo to the reported rape Rachel joined. later, months County Sheriff. Two OPINION county prosecutor charged Gabrion months, rape. For the three next KETHLEDGE, Judge. Circuit however, police unable find were scheduled to be Gabrion was Marvin him. rape for a Michigan state court tried January depu- On the Sheriffs But that trial charge on June They found and arrested Gabrion. ties the tri- days Two before happened. never *5 him an that named arrest warrant gave abducted Ra- begin, al set to Gabrion was charge: Tim- rape three witnesses for the 19-year-old woman Timmerman —the chel herself; Davis, Wayne an associ- merman to a took her allegedly raped he —and who been with him ate of Gabrion’s had in National location the Manistee remote rape; Gabrion’s teen- night and Forest, gagged her and bound and nephew, Mikey Gabrion. Marvin Ga- aged blocks, concrete weighed her down with arrest, but was jailed was after his brion boat, and then in an old metal her put (to after a friend whom Gabrion released overboard, alive, shallow, into a her threw DUI) jailed posted for bond was said lake, she drowned. Gabrion weedy where 3,1997. February him on in- Timmerman’s also abducted and killed daughter. fant jail for a Timmerman herself was re- drug charge Gabrion was minor when of- murder was a federal Timmerman’s witness, Davis, leased, was but another in a National because occurred fense days of for the time Within being. free 1111(b). A See 18 U.S.C. Forest. release, way Gabrion made his Gabrion’s jury later convicted Gabrion federal Cloud, Michi- Davis’s residence White that he be murder recommended report set to Davis himself was gan. court to death. The district sentenced 90-day for a term jail February on accordingly. Gabrion now him sentenced charge. His friend resulting from a DUI and sentence on challenges his conviction agreed to drive Davis to Lazo had Darlene his reject all of grounds. numerous We afternoon before jail morning. arguments, and affirm. en- report, Lazo was scheduled to Davis home, work- at Davis’s countered I. next arrived the ing on a car. When Lazo A. jail, he was give Davis ride morning chair, behind, on a kitchen missing. Left Ra- morning August On always jacket Davis army an at her mother’s was Timmerman arrived chel in the house personal His effects County, Michi- wore. Newaygo home trailer untouched, except that seemed from a lacera- likewise hysterical bleeding gan, missing. Davis was was equipment a man said that stereo on her nose. She tion A few weeks after again. alive her the never seen raped had Marvin Gabrion named (who Weeks). disappearance, certainly Gabrion tried to was almost Twice Davis’s Kirk, at a equipment up Davis’s stereo local the blond woman looked sell consignment shop, again. with the serial numbers then looked down Soon Kirk and ground off. her mother drove off. Finally, May again
On 5 Timmerman was released on June Pearl and Bob jail. driving along from Twice that month she encoun- Hall were a narrow two- of- track they tered Gabrion and called the Sheriffs road towards Oxford Lake. As afterwards, lake, panic saying got pickup fice in a she near the an old truck with Meanwhile, kill thought sticking he would her. boat out came fast the other Gabrion’s, Weeks, alone, young way. driving friend of John This time Gabrion was repeatedly called Timmerman to looking really ask her “like he was mad. He was just on a date. Rachel did not know that glaring.” pull Hall had to off into the calling Weeks was at Gabrion’s direction. bushes to avoid a collision. As Gabrion Finally, days 3—two past, on June before Ga- drove “it sounded like there was stuff rape begin brion’s trial was set to in the boat to make it rattle.” When —Rachel boy lake, that a got they told her father had invited her Halls down to the saw night, to dinner that and that she would ramp be marks the mud where someone couple in a recently dragged home hours. She said she had aout boat. bringing baby along her because the week, evening One later that same Ga- boy specifically had asked her to. Ra- approached brion and John Weeks several chel’s father never saw either of them alive campers nearby at a campground. Ga- *6 again. (an brion introduced himself as Lance alias used) day after disappear- frequently Timmerman’s and asked whether he
ance, several other people saw her with could store campers’ his boat at the other site, vicinity Gabrion and another man in the explaining that his own site was too Lake, which in partly Oxford lies the Man- keep They agreed. crowded to it there. National In early campers, Basset, istee Forest. June— One of the Dan said that certainly “skittish, almost on nervous, June 4—-Bonnie Robin- Gabrion was didn’t talk driving son in away was from her farm the much.” Basset also said that “al- Gabrion vicinity of approached ways Oxford Lake. As she gloves[,]” though wore even it was bridge, a one-lane she encountered an old warm out. upon Basset later came Ga- pickup truck driving way, campsite fast the other brion’s looking while for fire- towards the lake. truck fire, Inside the were wood. Gabrion standing by was (a large two men with a blond woman gloves campsite with on. The was no- Rachel) description matching sitting be- where near the area where Gabrion had was, tween them. The driver “seemed to be said it plenty and had of room to very angry about A something.” metal store a boat. sticking
boat out of the was truck’s bed. days Around 3:30 a.m. on June 6—two Kathy similarly Kirk testified that she after Gabrion was seen with Timmerman parked and her mother had at Oxford near Oxford Lake—one of Gabrion’s Lake, ramp, town, near the mud when an neighbors Zylstra, old Trevor awoke pickup truck with a boat out sticking very to the sound of “a bang[J” loud pulled up alongside back them. Zylstra Gabrion looked out the window and saw was driving young and a blond woman dragging grav- Gabrion a metal boat on his (whose news) Kirk photo driveway. later saw on the el got Once Gabrion the boat to sitting was him Zylstra between and another man the side of the him garage, saw vests, campsite to a that his uncle deputies three concrete iffs life remove two blocks, frequently chain. Then Ga- used. The site was north of length and a Lake, dense, garage into the down a two-track in a the boat Oxford pulled brion registration numbers. remote area. Gabrion’s tent was still off the boat’s ground they found pitched there. Scattered about 5,1997— July Almost a month later —on cutters, chain, shiny length bolt another Nathan son-in-law Douglas Sortor tape, clip, duct a woman’s hair and silicone fishing boat at to launch a small prepared baby for a nipples bottle. that Gabrion had visited. ramp the same Meanwhile, FBI in upstate New object floating about 100 They saw an already investigating York were object They looked at the yards offshore. theft of connection social-secu- thought ap- it binoculars and
through rity belonging mentally benefits to a dis- They to be a human torso. decided peared Rapids, Michigan, abled man from Grand The weeds between the investigate. disap- named Robert Allen. Allen had object too thick to row ramp and the were peared again. in 1995 and was never seen rowed to the South and through, so Sortor man Shortly disappearance after his who object. back towards the As then circled identified himself as Allen—but whom close, they protruding saw feet they came post-office employee later identified as Ga- they hoped said from the water. Sortor opened post office box Sher- dummy” of kind. Then the was “a some brion— man, New York and directed that Allen’s object they realized the odor hit them and benefit check be sent there each month. body. It was Rachel’s. The was a human one of Allen’s signed Gabrion also over with a concrete block body face-up was early payment checks as for rent front, near the waist. The attached to the FBI got In the Detroit word October leg Rachel’s left body fully clothed. to Sherman to that Gabrion was headed shiny tightly bound with and waist were An check for that month. collect Allen’s A second padlocks. chain and two metal out the Sherman FBI team staked SWAT was also attached to the concrete block *7 on October 14. When Gabrion post office wrists through the chain. Rachel’s body arrived, him. He was agents arrested her back. tightly handcuffed behind were Virginia driver’s license carrying a and mouth bound with duct eyes Her were at the time. name of Ronald Lee Strevels left uncovered. tape; her nose had been was about 3 feet The water that area 11-month old body of Timmerman’s The 82 feet of soft muck beneath. deep, with Verhage, has never daughter, Shannon body of the was covered About one-third virtually undisputed But it found. been as a result body muck. The had surfaced awaiting killed her. While that Gabrion gassing. of bacterial murder, gave Gabrion trial for Rachel’s Lake, on prisoner map of Oxford another time whereabouts Gabrion’s written, “body of 1 found.” he had which unknown, police promptly but the were incarcerated, told two Gabrion also While investigating suspect. him as a began baby because inmates that he “killed at his They executed a search warrant it.” put nowhere else to there was keys found two residence and body. on Rachel’s padlocks matched the B. that were They also found concrete blocks vi- Gabrion for government indicted paint and mate- The with the same tar stained prohibits which olating 18 U.S.C. attached to Rachel’s rials as the blocks “[wjithin maritime and special murder body. nephew, Mikey, led Sher- Gabrion’s Allen, jurisdiction mentally territorial the United was Robert disabled government path also notified man who crossed Gabrion’s in Grand States[.]” pen- Rapids just that it would seek the death and then vanished in Gabrion alty. identity before Gabrion assumed his and began stealing disability his checks. February
Gabrion went to trial on 2002. On March found him Numerous other testified to witnesses guilty first-degree propensity murder. The trial Gabrion’s for violence. Two (That penalty phase. then entered the is witnesses described how each of their phase during government which the shortly homes had been set afire after a disagreement submit evidence as to cir- defendant with Gabrion. Another wit- aspects began cumstances of the offense or of the ness how described shoot- background “aggravate” defendant’s ing a bolt-action rifle towards his house “mitigate” against penal- for or the death after he told Gabrion to a party leave (The ty.) investigating police there. officer passed found Gabrion out in a trailer with A sup- total of 58 witnesses testified in hanging the rifle above him on the wall port government’s allegations dur- spent casings pick- on the hood of his ing penalty phase of the trial. Some of outside.) up truck Another witness de- testimony depraved concerned the scribed how Gabrion trained rifle on her manner of the murder including the itself— two-year and her old child as she walked terror that Timmerman must have felt as day, to her ear one and then climbed into yards Gabrion rowed her 100 out onto the his car and followed them for miles. An- water, it, rocking lay the boat as she inside other woman testified as to how Gabrion blinded, bound, gagged, weighed down sexually assaulted her in her An- home. testimony with concrete blocks. Other other witness testified that Gabrion beat concerned the likelihood that Gabrion him, punched and kicked his wife in the baby, killed Timmerman’s Shannon Ver- face, son, punched teenaged and then hage. testimony Still other concerned Ga- after interrupted game the witness a card brion’s character and dangerous- future to retrieve heart medicine for the witness’s ness. of that testimony pointed Some uncle. Another witness testified that Ga- likely Gabrion’s disappearance role “snipe” everyone brion said he could in the (and murder) presumably of three other neighborhood second-story from his win- Davis, people. Wayne One was only night dow. One this same witness heard a (other rape witness to Timmerman’s than *8 gunshot, looked out the window and saw a nephew Gabrion’s and Timmerman her- red muzzle flash from Gabrion’s window self), who was last seen with Gabrion be- just before the crack of a second shot. fore disappeared, Davis and whose stereo This witness found a bullet embedded equipment Gabrion tried to sell several his home afterwards. Weeks, weeks later. Another was John likely only who was witness Tim- testimony Other that showed Gabrion murder, merman’s disap- busy and who himself had been a awaiting inmate while peared days about 18 later —never to be trial. He gun soap, carved a fake from again black, seen telling girlfriend painted his that planned and to use it an —after going calls, he was on a run” “dope escape attempt. to Texas In separate phone (Gabrion impersonated Gabrion. later told Weeks’s he a state senator and court girlfriend dropped that he had attempt off Weeks officials in an to transfer to anoth- Arizona.) needles, with some friends in jail. hypodermic The third er He obtained Dr. Thomas neuropsychologist, clinical from a blades, a made and claw razor Dr. the same conclusion. Ryan, contra- offered among other ring, shower metal that and believed calls tested Gabrion Ryan dozens of also placed also Gabrion band. He faking impairments. his grandmoth- was Verhage’s paternal Gabrion to Shannon as follows: results one test killing explained Rachel of er, her of accusing numerous And Gabrion wrote Shannon. malingering particular A: one [0]n father, knew saying he Rachel’s letters to test, a forced is what we call which asking photo for a baby was and where the measure, meaning that choice Ra- apparently,. desperation, In of her. to choose between person is forced one, him eventually sent father chel’s items, was Mr. Gabrion one of two gratifi- sexual then used for which Gabrion of 50 common ob- shown a series cation. through, as that was jects. As soon plate him another of I then showed finished with its prosecution
After cards, item he was the one which evi- mitigation offered Gabrion proofs, seen, was one he had just had one that asserted Douglas Dr. Sharre dence. basically seen. never So “multiple motor vehi- had been Gabrion which one he had forced to choose allegedly damaged Ga- that cle accidents” Now, blindly guessing just seen. Jackson testi- Dr. Newton brion’s brain. approxi- give you score would subject had been fied Gabrion mately 25 out of 50. child, including influences” aas “negative parents. his alcohol abuse violence dis- also testified Gabrion
Dr. Jackson
trials with the
three
A: Andthere were
fea-
personality
histrionic
“some
played
on each trial.
exact figures
same
and the
is exaggeration
where there
tures
memory
That is called the test
(Ga-
attention.”
the center of
to be
desire
got
trial one he
malingering. On
trial.)
Dr.
three
testified
times
brion
authors of that
score of
“[tjhere’s
fea-
antisocial
said
also
Jackson
anything below
suggest
test
history of arrests and
he has a
where
tures
malingering,
of 45 indicates
score
safety and
disregard for his own
heedless
two, because
on trial
particularly
oth-
others,
empathy
lack of
for
developed the test
who
person
also
said
Dr. Jackson
ers.”
individuals with
developed it on
features, and that his
narcissistic
displayed
who
injuries, people
very severe
largely
relationships
people
with other
burst, people
aneurysms
have had
using
people
other
“the form of
took
injuries,
brain
who’ve had severe
But Dr. Jackson
satisfy his own desires.”
in coma
who
been
people
have
view Mr. Gabrion
that “I don’t
said
brain-injured in
months. So
three
was en-
mentally ill” and that Gabrion
get a score of
generally
dividuals
ie., faking
malingering[,]”
in “some
gaged
44 or
about
symptoms.
this test
you gave
you
Are
saying
Q:
*9
presented evidence
government
The
three times?
driver in one
It first called
rebuttal.
yes,
administered —there’s
A: No—
accidents, who
alleged car
of Gabrion’s
administrations.
three
inju-
that
had faked
testified
Gabrion
test?
get for each
did he
What
Q:
he had
that
neurologist
A
testified
ries.
of 32.
got
a score
A: Ontrial one
and
records
Gabrion’s medical
reviewed
two?
about trial
injury. A
What
any
evidence of
brain
no
found
Q:
26,.so
got
disorders,
A: On trial two he
a score of
personality
he had
that
and
he did worse.
significant
loss of Gabrion’s life would be
family.
jury
to his
The
Q:
also found that the
How about trial three?
aggravating
sufficiently
factors
outweighed
Now,
A:
again,
these are the same
mitigating
justify
ones to
sentence
items,
stimulus
so on trial two he
death. The district court sentenced Ga-
got
performed
He
worse.
more
brion accordingly.
generally
See
poorly. And then on the retention
3593(a).
U.S.C.
got
trial he
of 21.
score
So this
to me that
indicates
he knew the
appealed. Among
Gabrion
other chal-
answer,
right
intentionally
but was
(and
lenges,
argued
Gabrion
here we mean
giving
wrong
me the
answer.
literally
that
up
Gabrion came
—for
Q:
Is that
true —I’m not going
also
himself)
argument
the federal
test,
go into the next
but is
also government
jurisdiction
lacked
over Tim-
you gave
true of the other tests that
merman’s
A
panel
murder.
divided
of this
him?
rejected
court
argument
separate
in a
A: Yes.
opinion.
Thereafter,
See
ance, that his upbringing contributed to his conduct,
criminal that he did not have school, record of disciplinary infractions Eighth We consider the Amend *10 abuse, that engaged in substance question that ment first. Gabrion’s briefs are
521
participate
not
away vehicle but did
location
why the murder’s
as to
not clear
Enmund,
themselves,
at
458 U.S.
mitigating,
is
murders
penalty state
non-death
in a
3368;
786, 801,
“arbi-
102 S.Ct.
evidence
that it would be
say
to
other than
“family
and abusive
upon
“geo-
“youth”
him based
defendant’s
trary”
execute
115,
at
102
history[,]”
murdered
455 U.S.
Eddings,
that he
happenstance”
graphic
869;
a National Forest.
of the defendant’s low
evidence
Timmerman
S.Ct.
Rachel
Texas,
37, 44,
that
But it
clear
125
at 119-20.
v.
543 U.S.
IQ,
Br.
Smith
(2004);
Michigan
400,
is unlike
evi
location
L.Ed.2d 303
murder’s
160
S.Ct.
has ever
Supreme Court
suffered from
any fact that the
that
the defendant
dence
true, of
Quarterman,
It
mitigating.
as
550
recognized
Brewer v.
depression,
may not be
course,
1706,
sentencer
286, 289,
that “the
167 L.Ed.2d
127 S.Ct.
U.S.
may considering,
(2007);
from
precluded
defendant
622
evidence
consider,
constitutionally rel-
refuse to
disor
personality
from borderline
suffered
Buchanan v.
10-11,
evidence.”
mitigating
Hook,
4,
der,
evant
Bobby v. Van
558 U.S.
757,
269, 276, 118 S.Ct.
(2009);
Angelone, 522 U.S.
13,
255
evi
175 L.Ed.2d
S.Ct.
130
(1998).
question
But the
L.Ed.2d 702
139
was “shuttled
the defendant
dence
“constitutionally relevant
home[,]”
is what counts
Wig
foster home to foster
from
Id.
evidence.”
mitigating
Smith,
510, 525, 123 S.Ct.
v.
U.S.
gins
539
(2003);
2527,
471
and evi
156 L.Ed.2d
“punishment
defendant’s
capital
A
sexually
the defendant was
dence
responsi
personal
to his
must be tailored
528,
child, id. at
123 S.Ct.
as a
abused
Flori
Enmund v.
guilt.”
bility and moral
of much of this evi
The admission
2527.
3368,
782, 801,
73
da,
102 S.Ct.
458 U.S.
belief,
by this
long
“the
held
reflects
dence
(1982).
two
Accordingly, the
1140
L.Ed.2d
crimi
who commit
society, that defendants
require the admission
eases that
seminal
to a disad
are attributable
acts that
nal
Ohio, 438
v.
mitigation evidence—Lockett
background, or
emotional
vantaged
2954,
973
586,
57 L.Ed.2d
98
U.S.
S.Ct.
may
culpable
less
problems,
mental
Oklahoma,
(1978)
455 U.S.
Eddings v.
ex
who have no such
defendants
than
869,
1
71 L.Ed.2d
104, 112, 102 S.Ct.
”
319,
at
109 S.Ct.
Penry,
U.S.
492
cuse.’
(1982)
principle
“the
upon
based
—are
Brown, 479
v.
(quoting
2934
California
directly related
should be
punishment
L.Ed.2d
93
107 S.Ct.
defendant.”
culpability of the criminal
personal
(1987) (O’Connor, J., concurring)).
934
492 U.S.
ry
Lynaugh,
Pen
defen
Thus,
relevant
to the extent
256
302, 319,
106
L.Ed.2d
S.Ct.
in
mitigation evidence
culpability,
dant’s
(1989),
grounds by At
on other
overruled
about
the defendant’s
evidence
cludes
304, 122 S.Ct.
536 U.S.
Virginia,
kins v.
of his
the circumstances
background and
(2002).
2242, 153
L.Ed.2d
327-28, 109
492 U.S.
Penry,
See
crime.
therefore,
surprise,
It
as no
comes
S.Ct.
of the evidence
that most
concern
In
to evidence
addition
evidence
mitigating
has deemed
Court
culpability, evidence
ing the defendant’s
culpa
personal
to the defendant’s
relevant
mitigat
can be
defendant’s character
in
That
for his crime.
evidence
bility
includes
That evidence
evidence
ing.
the de
cludes,
example, evidence that
a well-behaved
would be
defendant
time of his
at the
fendant was intoxicated
executed,
v. South
Skipper
if not
prisoner
crime,
Dugger, 498 U.S.
Parker v.
1, 4-5,
Carolina,
(1991);
731,
fendant’s
Porter v. McCol
boundary
of the Manis-
lum,
30, 39-40,
447,
Forest,
558
130 S.Ct.
175 tee National
before throwing
U.S.
Ra-
(2009);
overboard,
chel Timmerman
is not mitigat-
L.Ed.2d 398
and evidence of the
ing
the same
Michigan’s
in
reasons that
religious
defendant’s
conversion while
—for
lack of a
Belmontes,
penalty
death
is not
15,
mitigating.
prison, Wong v.
558 U.S.
(See
preceding
paragraph.) Nor does
20-21,
383, 175
130 S.Ct.
L.Ed.2d 328
boundary’s
proximity become
(2009).
mitigat-
whole, therefore,
Viewed as
miti
ing
speculation
based on Gabrion’s
about
gation
encompasses
culpabil
both
evidence
single juror might
what a
thought
have
character,
ity and
all to the extent relevant
evidence,
Mitigation
about it.
as shown
“personal responsibility
to the defendant’s
above, is not an empty concept to be filled
Enmund,
guilt.”
and moral
458 U.S. at
lawyer
whatever a
or court
thinks
801,
In summary: mitiga
523
of evidence that the
IQ,
type
is a
low which
not mean
that does
3368. But
102 S.Ct.
fear)
mitigat-
has
judges
identified
that
Court
(as
to
seems
the dissent
Texas,
determining
543 U.S.
in
v.
ing.
filters
See Smith
as moral
must act
(2004).
pur-
for
mitigating
303
160 L.Ed.2d
evidence is
125 S.Ct.
whether
Su-
therefore,
The
Amendment.
was
Eighth
mitigating,
the
of
of
The definition
poses
task, by
issue,
us
spared
has
rath-
Court
preme
in Tennard. The
not the issue
evi-
categories of
identifying certain
itself
the
er,
definition of relevance:
was the
stated,
and
culpability
broadly
exclusion of
upheld
had
the
Fifth Circuit
dence—
morally significant
are
character —that
that it did
grounds
on
evidence
Tennard’s
Amend-
Eighth
mitigating under
thus
(as
tendency
opposed to
strong
not have
therefore,
task,
not our-
is
Our
ment.
is the usual relevance
tendency, which
any
significance
moral
to determine
selves
standard)
culpability
mitigate Tennard’s
to
fact,
to deter-
but rather
particular
of a
re-
Supreme Court
crime. The
for his
within one of
falls
the fact
mine whether
test
versed, stating that the Fifth Circuit’s
the Su-
morally
bins
significant
have
the standard we
with
“is inconsistent
already identified.
has
preme Court
capital
sen-
relevance
adopted for
Rachel Timmer-
of
coordinates
geographic
287, 124
at
tencing context.” 542 U.S.
fail that test.
murder
man’s
reiterated
2562. So the Court
S.Ct.
n
loca
that the
is
response
The dissent’s
is no
‘meaning of relevance
“the
standard:
“circum
is a
murder
Timmerman’s
of
tion
mitigating
of
evi-
the context
different in
true
That
is
of the offense.”
stance
capital sentencing
in a
introduced
dence
day—
moonphase
enough
any
context[.]”
other
than
proceeding’
—so
read
to
those
is mistaken
the dissent
but
McKoy
(quoting
character or other circumstance of
the offense that mitigate against imposi sentence”).
tion of the death Gabrion also makes what is known That Michigan lacks a death penalty aas “residual argument. doubt” An ele does not fall within any of these statutory ment of Gabrion’s offense this case was (6th Cir.2007) record con- 774-75 Timmerman Rachel murdered —the {i.e., factor concerning the evidence See 18 U.S.C. tains Forest. a National within location) -says that Gabrion Tim- murder’s 1111(b). killed Whether Gabrion (as from the sentenc- improperly excluded to was opposed Forest inside the merman his trial. ing phase then Forest and outside the killing her inside) an issue ex- body moving her record, exclusion Ga- On this phase of during guilt tensively litigated so argument was brion’s residual-doubt eventually found The jury trial. *14 Gabrion’s opinion render an palpably harmless that Gabrion a reasonable doubt beyond nearly advi- merits of the exclusion on the Timmerman the Forest. Ga- inside killed aggrava- for sory. government’s The case that, Eighth the says under now brion killed overwhelming: Gabrion tion was Death Penal- the Federal Amendment horrific undisputedly in an Timmerman jury argue to the Act, entitled to ty he was manner, daughter, likely killed her infant of his trial that phase during penalty the either wit- three other who people killed miti- putative they should consider—as death was his crimes or whose nessed doubt” about any “residual gating factor— him, and terrorized useful to otherwise already beyond found they had a fact path. his people who crossed countless i.e., Tim- doubt, he killed reasonable most residual-doubt cases— And unlike inside the Forest. merman the de- concerns whether the doubt where murder— actually the committed Court has fendant plurality A only a concerns supposed the doubt that there here “quite doubtful” that it is said that, though jurisdictional issue argue right technical any constitutional exists morally. is much less so significant legally, mitigating factor. as a doubt” “residual residual-doubt exclusion of Gabrion’s Guzek, 126 The Oregon (2006) (inter- beyond a reason- was argument harmless 168 L.Ed.2d omitted). doubt. Two other able marks quotation nal right’s rejected the existence
justices have B. 528-30, at 126 S.Ct.
altogether. See id. (Scalia, J., like- concurring). We are that the dis next claims unrea- (by-definition) doubtful that wise pro-death of favor court was biased trict litigated an issue regarding doubt sonable of select during process jurors the the trial can during guilt phase the of dire). (i.e., During voir ing jury the response to “a reasoned moral part of poten court the interviewed process, character, and background, defendant’s in (i.e., Those jurors venirepersons). tial Penry, 492 U.S. crime.” the same followed generally terviews original). (emphasis po to the spoke the court first template: was that Gabrion explaining juror, tential that issue here. we need decide But innocent, government Act, presumed Penalty Federal Death Under guilt, proving Gabrion’s the burden not reverse or bore appeals shall court “[t]he govern that, jury that the if the found on account of a sentence of death vacate burden, the case not carried its ... ment had be harmless can any error which explain the court would Then beyond over. the Government establishes where that, if found juror potential the error was doubt a reasonable doubt, a reasonable 3595(c)(2)(C). beyond guilty We Gabrion 18 U.S.C. harmless.” sentencing proceed to here, case would be- make such a determination can would purposes practical which Coyle, phase, 475 F.3d in Davis v. cause—unlike be like a new trial. cause, That Gabrion would plus jurors. 15 other govern- The have guilty premeditated been found potential jurors, ment struck 18 including murder was not a sufficient basis for the the ones it had unsuccessfully challenged jury to recommend sentence. In- for cause. party objected Neither stead, the explain, court would govern- 12 jurors actually who on sat Ga- ment bore the burden of proving beyond a jury. brioris reasonable doubt any aggravating factors But Gabrion says process was unfair government thought favored a Specifically, nonetheless. he claims that death sentence. The court would further the district court improperly excluded four explain that Gabrion was prove, entitled to generally anti-death penalty venirepersons merely by a preponderance of the evi- (Abrahams, Donahey, Hemmeke, dence, any mitigating factors he thought Groves) whom government challenged applicable. jurors would weigh then for cause. Gabrion also claims that the aggravating against factors the miti- *15 jury-selection court’s process general- was ones, gating and could death recommend ly “lopsided” in jurors favor of sup- who only if they unanimously found the ported the death penalty. We consider aggravators outweighed mitigators. the these claims turn. point At that dire, in the voir the court would typically ask the venireperson
whether she could follow those instruc-
tions. Then
prosecution
the
and defense
“It is well settled that the Sixth
lawyers would each have a
question-
turn
and Fourteenth
guarantee
Amendments
a
ing
potential juror.
the
The court fre-
defendant on trial for his life
right
to
quently asked its own follow-up questions
an impartial jury.”
Oklahoma,
Ross v.
487
after
lawyers
were done.
all
Once
81, 85,
2273,
U.S.
108 S.Ct.
Venireman Donahey likewise resisted ef-
he indicates he has a strong moral
forts at his
Donahey
rehabilitation.
stated
against
view
the death penalty; and
on his
questionnaire that “I think the
two,
asked,
number
when
equivo-
he
is wrong[,]” but then told
cated on
or
whether
not he could in
the court that he “would follow what the
fact consider it. He
try hard,
would
law would tell me to do on that.”
In
but he was unable to say that
response
to an open-ended question by the
would be able to do it.
I think
prosecutor,
So
however, Donahey said: “And
he needs to be—he should be ex-
to take life
they
because
took someone
cused for that
reason
life,
this matter.
you know,
else’s
somewhere down in-
me,
just
side
right[J”
seem
doesn’t
He
Donahey’s
presents
exclusion
*17
(cid:127)
added, in response to a leading question
closer question than Abrahams’s did. The
from
prosecutor,
that his views about
first
cited
reason
by the court—that “he
the death penalty “might” interfere with
indicates he has
strong
moral view
“ability
to make a judgment as to against
the death penalty”
not a
—is
sentencing[.]” Gabrion’s counsel
then
ground
Witt,
for exclusion.
469 U.S. at
sought to rehabilitate Donahey with a long 424,
Q: Now, this, given you would be able could consider the penalty. death That to consider all of these factors in finding plainly is correct. The court’s final making a sentence, determination of reason —that Donahey “was say to unable factors, aggravating mitigating fac- that he would be able to” consider the tors, bring your values, own death penalty at least nominally refut —is consider the imposition of one of by ed Donahey’s answer that he “could these two sentences? consider it.” But that answer came in A: I believe it would be very difficult. response to a question, leading after Ga- I hope would could, that I you brion’s counsel pressed had him on know. But until I’m actually in that point; and the answer came on the heels position, very it’s difficult say. equivocation another it “would be —that Q: Well, we understand it’s difficult. very difficult” to consider a death sen
We understand it’s— tence. Donahey’s statements, viewed as a Q: minute. penalty No death aWait there and “when whole, ambiguous; were and life that’s lenient because juror’s prospective in the ambiguity worse, right? prison is court, un- as it statements, aided the trial A: Yeah, yeah. veni- assessment doubtedly byis its it demeanor, to resolve is entitled
reman’s by questioning prose- response In Uttecht, government. of the” in favor however, “If the cutor, said: Hemmeke (internal quota- there, together, fits everything are facts omitted). The alterations marks and murder, tion very gruesome, ugly it and was to exclude its discretion was within court it, maybe go with maybe do I would then Donahey. also sentence.” Hemmeke the death leading question to a response said—in expressed Hemmeke Venireman he “yeah[,]” counsel—that from defense to the death opposition stronger a death sentence. could consider did, on the cheeking a box Donahey than cause, for Hemmeke The court struck said, nev “I could questionnaire juror by this man’s terribly upset “I’m saying facts and circum er, regardless somehow thinking in which he thinks fuzzy imposed stances, which return verdict than egregious prison is more that life in as a But his answers penalty.” “I’m not The court added death[.]” began court incoherent. were whole thought pro- gentleman’s satisfied that as follows: questioning purposes of hang together for cess can by that mean Q: Okay. What did you to”; it making decision needs questionnaire]? [response on the really I him is excusing “[m]y reason instructions”; he can follow don’t think it’s guilty, if A: feel that the defen- ultimately “I think and that stay him to have punishing more him.” have We may prejudiced be dant cell in a little up jail cooped a— any of these find- second-guess basis no put be to than what would ings. death. think, then, that it’s more
Q: You of veni Oh. the exclusion That leaves re Groves, the “water cruel— who was reman employer. for a local sources director” them— To A: keep *18 actually contacted had prosecution The than Q: —to sentence prison to life before well Gabrion’s case Groves about to take life? is meaning of dire, asking him about voir A: Yes. under Michi “navigable the term waters” during voir dire said law. Groves gan have difficul- Q: why you That’s would if neces that contact aside set he could ty imposing death? “a co-worker he also sary, but that had A: Yes. with to school went apparently whose wife wheth- Hemmeke The court then asked things about [Gabrion], and I’ve been told court’s instructions could follow the er he things those described Groves [Gabrion].” mitigating circum- aggravating and “on by asked unflattering[.]” “very When those circum- weighing stances “be able to set he whether would the court responded: Hemmeke stanees[.]” answered, case[,]” Groves in this that aside also I Groves think could.” say, I “I’d like to they might hearing what A: I— reserve think I would that “I I’m set said pretty But might change it. like Osama for an individual penalty death penalty. in the no death bin Laden where we have someone that’s a 119 L.Ed.2d type.” mass murderer (1992). When later asked But we will assume without by defense counsel whether he could follow deciding that can show violation the court’s instructions in a sentencing of the Sixth if simply Amendment he dem- phase, Groves answered: “I suppose I onstrates that his process selection could, yes.” pro-death favored penalty jurors generally.
The court excluded Groves The for three factual claim, basis for Gabrion’s reasons: “The is, first is he was as it such is apparently First, twofold. says he contacted government ... and I that “the trial attempted court to rehabili- think just specter raises potential tate here that I defense cause excusáis [i.e think inappropriate.” pro-death Even penalty jurors], more trou- but did not take court, bling however, was a same approach potential second to govern- reason: lie., ment cause excusáis penal- anti-death ty ones].” Gabrion Suppl. Br.
I think at 14. this is The really potentially very record belies that assertion. damning of Take the ex- Gabrion, Mr. he apparently ample Branch, venireperson talks who somebody stated he works with whose on his questionnaire that he “really wife was apparently went to school Mr. with against the penalty.” death response In Gabrion and she fills his ear things question another about there Mr. Gabrion. And I say, you can —whether “anything about this case disregard pre- that? that would And he looks at me and vent” him from following Yeah, if says, I oath select- think I can. I’m not juror ed as a responded, yes: convinced very he’s sincere. —Branch “The death penalty.” But the district Third, court said that very “when art- court did not leave matters there and ex- fully though led a serious of questions, he cuse Branch for Instead, cause. the court says, yeah, I could consider” the death explained the process trial to Branch at penalty, but that Groves “winc[ed] and length and whether, then asked as a part bob[bed] a little bit” weave[d] when he process, Branch could consider the said that. Each of these reasons was suffi- penalty. death Branch said that he could. cient for Groves’s exclusion. But Branch then backtracked in response prosecutor’s questions, saying that he was “not certain” whether he could Gabrion is unclear about the constitu- consider the penalty. So the court tional basis for his claim that the district rehabilitated him again: jury-selection court’s process was general- Q: ... want make ly you’re sure that “lopsided” in pro-death favor of on the page jurors. here. predicate says He in passing that this claim here was if the facts it, warranted upon based the Equal Protection and *19 words, other if the facts were such clauses, Due Process but does not develop that that, would warrant you? could argument enough for us to consider it I you And say heard might I here. not. is it Nor clear from the caselaw that What did you by mean that? the Sixth Amendment supports jury- selection claim that is not based on either
the exclusion of a particular anti-death A: It’s hard say to me being without penalty juror (on or the inclusion the actu- juror or circumstances where al petit jury) of an “automatic penal- death I have to I say decide. might it’s a ty” juror. Illinois, See Morgan v. possibility yes of a or a no. indi- They are not commodities. to rors are want that’s based —I And Q: Right. viduals, during voir dire answers upon the whose based make sure —that’s ways, subtle and philosophy some your what differ various not on facts, Here, court took the district not. some is? and excluded of those differences account no, just nothing, Religion or A: Hemmeke, Abrahams, and Donahey, facts. already mentioned. reasons for the Groves you. Thank you, sir. Okay. Thank Q: jurors penalty pro-death And it retained to excuse moved then government Wehler, on and Erickson Harrington, refused, ex- court for cause. The Branch on which it grounds to the grounds similar depends it on says “this witness plaining: Branch, penalty jurors anti-death retained I’m facts, I that’s sufficient. and think Fix, on balance Wing namely, and — previously he the fact that troubled that he could credibly each of stated them obviously has stated, way. But No choosing the court’s instructions follow this, and thinking about think done some See, e.g., Jury the case. sentence in appropriate.” he’s “is, in Branch (stating Tr. Trial at anti- Likewise, two other there were guy”); Id. flipa of the Wehler my opinion, and Fix— Wing penalty death veniremeh— Harrington “is not (stating that at. 536 their regarding equivocated at first who Mr. Branch who morning’s ][ unlike this but penalty, death ability to consider the pen- the death impose never said he could follow- answers gave rehabilitative then out, he said he ... come to find alty and Indeed, Ga- from the court. up questions fair”). be could “response Fix’s counsel cited brion’s [ie., question” court’s] the district a commendable your court did The district motion ex- government’s one, of select- opposing unconstitutional job, not an “agree[d]” The court for cause. argu- cuse Fix jury in this case. ing a Gabrion’s point, and on that counsel with Gabrion’s contrary are meritless. ments to objections to government’s overruled Moreover, as noted Wing. Fix and
both C. Abra- above, venireman the court asked in favor of reha- leading question hams the dis argues that next Gabrion bilitation, to follow declined but Abrahams instruc jury erroneous gave trict court Thus, assertion lead. Gabrion’s court’s necessary findings regard to the tions with only pro-death court rehabilitated court sen that the to its recommendation false. venirepersons simply penalty order for Ga- to death. In tence Gabrion penalty, eligible for the brion says the district court also Gabrion beyond a things two to find had generally four because excluded biased first, killed doubt: that Gabrion (Abra- reasonable venirepersons anti-death “intentionally[,]” 18 Timmerman Rachel Groves, Hemmeke, hams, Donahey, second, 3591(a)(2)(A); § above) retaining U.S.C. while already discussed one of proved “at least government ones pro-death penalty generally three set forth Erickson) factors statutory aggravating Wehler, whom (Harrington, States, (and v. United 3592.” Jones later challenged for cause *20 2090, L.Ed.2d 376-77, 144 course, 373, 119 S.Ct. true, It is of peremptorily). struck (1999). became [Gabrion] “Once 370 one excluded the set the court that whether jury had to decide eligible, the retaining the other. venirepersons while Id. sentence.” a death should receive wrong. Ju- premise is argument’s But the 532
377, 119 S.Ct. Specifically, the jury “determination” that a increases defen required was to dant’s maximum sentence. ap Instead it plies only consider whether all the to aggravating findings of “fact” that have factor or factors found exist that to effect. Id. Apprendi itself, suffi- In for ciently outweigh all the mitigating example, factor the Court held that jury a was or factors found to exist to justify a required beyond to find a reasonable doubt sentence of death.... Based upon this the “defendant committing the consideration, jury the by unanimous crime acted with purpose to intimidate vote ... shall recommend whether the an individual or group of individuals be defendant should be sentenced to cause of 468-69, raee[.]” Id. at 120 S.Ct. death[.] 2348. In Blakely v. Washington, 542 U.S. 3593(e). 296, § 300, 18 U.S.C. If 124 jury 2531, the recom- S.Ct. 159 L.Ed.2d 403 death, (2004), mends the district required court is the same was trae finding about a to impose that sentence. See 18 the defendant U.S.C. acted with “deliberate 3591(a)(2). cruelty[.]” In Booker, United States v. 220, 233, 543 235, U.S.
Here,
738,
jury
the
beyond
found
a reason-
(2005),
L.Ed.2d 621
able
doubt that
was
Gabrion
same
true
killed Timmerman
about a finding that
intentionally and
defendant pos
that two statutory aggra-
sessed more than
vating
grams
factors were
present.
crack.
jury
The
also
Even
determined,
Gaudin,
United States v.
unanimously,
govern-
ment’s
115 S.Ct.
aggravating
sufficiently
factors
L.Ed.2d 444
out-
(1995)-a
weighed
case
the mitigating
often cited as
justify
high-
ones to
sentence
water mark
for
death. But
what counts as
argues
a “fact” for
jury
purposes
required
Apprendi&emdash;the
was
necessary
to make
find
determination-ie.,
latter
ing was simply that
“outweighs”
defendant’s state
one-beyond a
ment
likely
reasonable doubt.
particular
The
have a
dis-
effect
trict court did not
on
recipient.
instruct
its
jury
to that
effect, so Gabrion says we must vacate his
These sorts of findings&emdash;that
a particu-
sentence.
lar
might
statement
influence
recipient,
its
support
As
argument,
his
Gabrion or that the defendant acted
particu-
with a
cites
Court’s holding in Ap
mind,
lar state of
possessed
or
particular
prendi v. New Jersey,
quantity of drugs, or was
the trig-
himself
120 S.Ct.
(2000).
533 if jury not need to be instructed as saying like did gray; of of shades judgment, finding of fact. composer making were a a better was that Beethoven Here, is mor- judgment Brahms. than Every circuit to have addressed the ar- “just.” is “justify” of the root al—for cir- makes here —six gument Gabrion 3593(e) therefore, not is requires, §What rejected it. See United so far —has cuits fact, judgment. a moral of but finding a (4th 475, 707 516 Runyon, States v. F.3d 3593(e) Fields, Cir.2013); § is no different United States respect In that (10th Cir.2008); 923, § which likewise re- United F.3d from 18 U.S.C. Mitchell, to “consider” decisionmaker States v. 502 F.3d 993-94 quires the (9th Cir.2007); Sampson, and then determine —as United States v. various “factors” (1st Cir.2007); particular sen- imposing 486 F.3d United prerequisite “sufficient, (5th Fields, but the sentence is States v. 483 F.3d 345-46 tence—that Cir.2007); comply at To- necessary” Purkey, than 428 F.3d 749. greater not 3553(a)(2). § day forth in become the seventh. Gabrion’s purposes set we just necessary is meritless. argument That determination is 3553(a) § under the selection of a sentence determination is to “outweighs”
as the III. 3593(e). § under selection of sentence A. in- are therefore The two determinations Apprendi; distinguishable purposes for arguments three presents also jury that a must yet no one contends and in says original panel ap- that he his that a beyond a reasonable doubt find peal overlooked. “sufficient, is but
particular sentence necessary” under
greater than 3553(a)(2). § argument first such Gabrion’s 3593(e) summary, in that we should order determination requires, § What purposes appeal. of his partic- competency of a finding support not a of fact 3593(e) court By way background, the district requires is ular sentence. What no fewer than three mental- itself, appointed sentence with- a determination of the Gabrion, each of experts is health to examine range in a for which the defendant compe that he was both whom concluded already eligible. That makes this case (To malinger is to malingering. any in which the tent different from Here, with Histrionic manipulate; persons applied Apprendi. Ga- Court has high personalities Antisocial tend to be eligible” once the or already brion was “death Psychiatric American ly manipulative. See jury beyond a reasonable doubt found Association, and Statistical Diagnostic intentionally killed Rachel Timmerman (DSM-IV- Manual Mental Disorders statutory aggravating that two factors (4th 2000); TR), at 702 Jones, ed. see also id. present. were (Antisocials lie, use an “may repeatedly did not point 2090. At that others, alias, malinger”).) or We con find additional facts order need to that the dis original panel agree with the that Gabrion be sentenced recommend decide, find that Gabrion trict court was correct to only pursu- It needed to to death. trial. See 648 competent to stand described weighing ant to the of factors argument And statute, at 318-20. Gabrion’s a sentence was F.3d that such 3593(e). 3591(a), order a new determination §§ that we should “just[ 18 U.S.C. ].” ap- purposes of his competency for judgment, of his making that moral And *22 is, substance, peal simply contends, however, rehash of his Gabrion argument incompetent that he was in the court should have returned Gabrion to the not, district court. Overlooked or this ar- courtroom sooner than the court actually gument is meritless. Specifically, did. suggests Gabrion
the court should have
him in
put
shackles
him
returned
to the courtroom almost
2.
immediately
punch,
after the
albeit with a
says the original panel
Gabrion
warning,
stern
apparently, that additional
argument
also overlooked his
that the dis
outbursts would lead to his removal. The
trict court should not have excluded him argument defies common
Setting
sense.
during
from the courtroom
portion
question
aside the whole
whether Gabrion
penalty phase.
trial’s
The exclusion in
physically restrained,
could have been
question occurred after
punched
Gabrion
every
court had
reason to think that Ga-
lawyer
his
presence
the face in the
of brion would continue to
verbally
disrup-
the jury. The district court sent Gabrion tive if he
promptly
were
to return. And
upstairs to the courthouse lockup, where Gabrion admits that a district court can
for the remainder of that afternoon he
exclude a defendant
verbally
who is
dis-
watched the trial on closed-circuit televi
ruptive. See Gabrion Pet’n
Reh’g
for
at 3.
sion.
morning
The next
the U.S. Marshal
Gabrion
verbally
disruptive
reported that Gabrion had
“very
been
un
throughout almost the entire trial. To cite
ruly in
throughout
the cell block
the after
one of dozens of examples, during the
noon,
cell,
banging
yelling,
on the
that sort
prosecution’s opening statement during
of behavior all afternoon[.]” Gabrion’s
phase,
interjected
Gabrion
reported
counsel
thing.
same
all to hear: “Why
you just
do
let him
court left
upstairs
Gabrion
for a total of 24
stand up there and lie like that and never
witnesses.
anything
do
about it?
It’s bullshit....
liar
Fucking
asshole.” The court had no
The Confrontation Clause and
reason to think Gabrion
behave any
would
Federal Rule of Criminal Procedure 43
just
better
after punching his counsel and
ordinarily require a district court to warn
carrying
upstairs
on
all afternoon. The
disruptive
a.
defendant
removing
before
district court did not abuse its discretion
him from the courtroom.
Gray
See
by excluding
period
Gabrion for the
it did.
Moore,
(6th
Cir.2008);
520 F.3d
Allen,
See
Illinois v.
43(c)(1)(C). Here,
Fed.R.Crim.P.
Gabrion
(1970) (“trial
mean you that. Do understand Finally, that?” says original panel added, The court later “I’m giving you fair overlooked argument that Dr. Saa- warning you and I want very hear me testimony thoffs in rebuttal violated Ga- . clearly I will not tolerate interruptions or brion’s Fifth and Sixth rights Amendment during noise the trial.” So lack warning to the extent that Dr. Saathoff testified is not an issue here. about Gabrion’s contempt for women. We *23 unanimously sat on this case decided that panel overlooked this not think do Dr. deserved a sentence of that Marvin Gabrion Gabrion concedes argument. subjects raised death for what he did to Rachel Timmer- testify could about Saathoff in man. have no basis to set aside that experts mitigation. See We by Gabrion’s judgment. But moral The district court’s Suppl. Br. at 38-39. Gabrion testi- is affirmed. judgment that Dr. Saathoffs Gabrion asserts misogyny exceeded mony about Gabrion’s in miti- experts’ testimony scope of his CLAY, Judge, concurring only Circuit thereby allegedly violating Ga-
gation,
judgment.
the Fifth and Sixth
rights under
brion’s
majority
Both the
and the dissent offer
Amendments.
wide-ranging opinions that delve into the
correctly
original panel
The
determined
impli-
minute
of the
issues
important
detail
argument
of this
premise
that the factual
It
cated
this case.
is the breadth
testimony
“Dr.
is incorrect:
Saathoffs
however, that
opinions,
prevents
those
me
of Gabrion’s
a whole was a fair rebuttal
fully embracing
opinion’s
from
either
anal-
unfairly
mitigation evidence and did
Therefore,
ysis.
only
judg-
I concur
in the
For
dence. See Dissent at 538. While I do not
respect
With
to the
argu
residual doubt
*24
see
majority’s
alteration as the “trans ment, it must first be stated that the same
id.,
does,
form[ation]” that the dissent
I do jury
already
had
beyond
found
a reason
not think
majority’s
that the
references to
able
doubt
Defendant
Tim-
murdered
jury’s
judgment
moral
are necessary to
merman on federal property when it found
Maj.
resolve this
Op.
case. See
at 521-23.
guilty during
Defendant
guilt phase
of
sure,
To
morality
be
jury’s
and the
“moral
the trial. This finding, as demonstrated
response”
part
are
of death penalty delib
by
I,
the concurrence in Gabrion was well-
erations, Penry v. Lynaugh,
302,
492 U.S.
supported by the evidence. United States
319,
2934,
109 S.Ct.
mandate I. PENALTY-PHASE ERRORS conviction that Defendant’s judgment Michigan’s Penalty Lack of a Death A. affirmed, but not and sentence Mitigating Evidence analysis. or its majority opinion three theories in
Gabrion articulates
support of his contention
the district
MOORE, Circuit
KAREN NELSON
him
by precluding
pre-
court erred
from
dissenting.
Judge,
senting
of the location of the
evidence
Ga-
guilt phase
trial,
of Marvin
During during
of his
phase
crime
*25
trial,
required to make
jury
the
was
Eighth
brion’s
the
Amendment
arising
one
under
extremely compli-
on an
a determination
on the
Death Pen-
and two based
Federal
(“FDPA”).
element of the
hotly
Although
and
contested
I believe
alty
cated
Act
the
requires
Gabrion committed
admis-
offense—whether
that each of these theories
evidence,
Forest or
I am most troubled
murder in the Manistee National
sion of this
majority’s
answer
to eviscerate the
Michigan.
by
Their
the
decision
in the State
established
interesting
an
academic decades-old relevance standard
only
resolved
in order to achieve
jurisdiction,
by
Supreme
but also ex-
the
Court
of federal
issue
majority’s
the
desired result.
to a sentence of death.
posed Gabrion
connection between
Given the direct
constitutionality
morality
with
Replacing
penalty
the resultant
determination and
the
the benchmark of relevance narrows
as
sought to introduce as miti-
phase, Gabrion
may
that a defendant
scope of evidence
argument and
gation both a residual-doubt
during
penalty
the
present
mitigation
the crime. The
of the location of
evidence
importance of
phase of his trial. Given the
request, and the
court denied this
district
right,
support
I cannot
this constitutional
with no mention
penalty phase proceeded
way
in
the standard
such a
transforming
At
of the offense.
the
of this circumstance
precludes
present-
a defendant from
sought
phase, Gabrion
penalty
end of the
sim-
ing constitutionally relevant evidence
jury
the
instructed
accordance
to have
judges cannot see
ply
panel
because a
Jersey,
530 U.S.
Apprendi
New
majori-
the
moral relevance. Whatever
its
120 S.Ct.
L.Ed.2d
or
culpability
moral
ty thinks of Gabrion’s
(2000)
to sentence Gabrion
order
—that
com-
nature of the crimes he
the horrific
death,
to find be-
the
would have
mitted,
opinions
displace
cannot
these
aggrava-
doubt
yond reasonable
the evidence
relevance of
constitutional
mitigators. The dis-
outweighed
tors
I
allow
present.
would
Gabrion seeks
request as well.
court denied this
trict
evidence of the location
present
Gabrion to
element of the offense—
of the crime—an
majority
that neither of
concludes
standard em-
on the constitutional
based
constituted errors.
these determinations
Court,
alterna-
Supreme
ployed
district court
I believe that
Because
the FDPA.
tively, under
these determina-
making
each of
erred
tions,
jurors
excluding
as in
certain
as well
Eighth Amendment
dire,
consti-
during voir
Gabrion’s
result,
Eighth Amendment
A defendant has an
as a
rights
tutional
were violated
at the
all evidence
right
present
I would vacate Gabrion’s
agree.
cannot
phase
capital
of a
trial that
(1976)
is relevant to
96 S.Ct.
When we
offense
directly
addressed
underscores the
rele-
conse-
quences of
applicable
majority’s
vance standard
mitigating
decision to trans-
...,
form
evidence in
capital
spoke
cases
we
standard. Under the standard,
Court’s
expansive
the most
terms. We
evidence related to
estab-
an
element
lished that the
of the offense
meaning
unequivocally
of relevance
rel-
evant, yet
no different in the
under
context of
the novel
mitigating
standard em-
ployed by
majority,
evidence introduced in a
capital
may
court
sentenc-
skirt
ing proceeding
inquiry
than in
most
any other
relevant to
con-
its admission.
text,
general
and thus the
evidentiary
*26
Additionally,
Supreme
Court has in-
any tendency to make the ex-
standard —
dicated that
may
evidence
nothing
“ha[ve]
any
istence of
fact that is of consequence
to do with
culpability
offense,”
his
for [the]
to the determination of the action more
yet be admissible
Maj. Op.
nonetheless.
probable or less probable than it would at 522.
explained by
Stevens,
As
Justice
be without the
applies.
evidence—
“a
must be
give weight
allowed to
Dretke,
Tennard v.
274, 284,
542 U.S.
124 any aspect of a defendant’s character or
2562,
(2004) (inter-
S.Ct.
2.
Johnson,
(7th
culpability
defendant áre
of the
the moral
Cir.
about
of different from other illustrative lists. As
majority
The
readings.
ultimately
explained by
these
the Fifth Circuit when re
not,
jecting a similar
relying
argument
relating
concludes that it does
on the
FDPA,
aggravating factors under
assumption
Congress
unfounded
limit-
“
3592(a)
principle
is “a cardinal
statutory
§
‘[i]t
protections
ed the
in
to the con-
ought, upon
construction”
“a statute
stitutional minimum.
Because
believe
whole,
that,
to be so construed
if it
the FDPA allows a defendant to introduce
clause, sentence,
prevented,
can be
no
beyond
evidence
mini-
constitutional
void,
or
shall
superfluous,
word
or
mum, I
agree.
cannot
’”
insignificant.”
United States v. Rob
matter,
As an initial
I remain confound-
inson,
(5th Cir.2004)
367 F.3d
ed as to
relating
how evidence
to an ele-
TRW,
Andrews,
(quoting
Inc. v.
ment of
qualify
the offense does not
as a
151 L.Ed.2d
“circumstance of
the offense” under
(2001)).
The
panel correctly
merits
3592(a)(8).
§
majority
again
The
once
re-
concluded that purely as a matter of
engage
analysis,
fuses to
in
choosing
statutory interpretation, defense counsel
rely upon unsupported
instead to
asser-
to argue any point
entitled
tions,
3592(a)
namely
§
is based in the
conceivably
juror
“could
question
make a
principles
same moral
as the majority’s
the appropriateness
in the case of im
novel relevance standard.
assuming,
Even
posing a sentence of death.” United
though, that an element of the offense is
Gabrion,
States v.
648 F.3d
3592(a)(8),
§
somehow
scope
outside the
(6th Cir.2011), reh’g
granted,
en banc
3592(a)
expansive
§
nature of
as a
(6th
2011).
op.
vacated
Cir. Nov.
requires
whole
permitting
pres-
Gabrion to
government
try
does not even
By
ent this evidence.
language,
its own
argue that
this evidence could not even
3592(a)
§
list is non-exhaustive and
“conceivably”
juror’s
bear on a
decision
merely illustrative. The first indication of
justified
of whether death was
under
3592(a)’s
§
expansive nature is
reflected
this standard.
the initial preface,
Congress
where
stated
Perhaps the strongest
in sup-
evidence
that the
“shall consider any mitigat-
3592(a)
port of an expansive
reading of
added).
ing factor.”
(emphasis
Id.
Con-
is found in
interpretations
of other
gress subsequently
open-ended
used the
provisions.
FDPA
Specifically, our sister
“including”
word
listing
when
the enumer-
circuits have
consistently interpreted
examples
ated
mitigating
factors.
Id.
3592(b), (c),
(d)
§§
3593(a),
The majority
does
account for this
aggravating-factor provisions,
expan-
open-ended language
meaningful
sive.
interpretations
These
are instruc-
way, focusing instead on reiterating its
tive, as the aggravating-factor provisions
argument by
constitutional
pointing to the
employ the same terms that are at
issue
similarities
language
between the
the mitigating-factor provision.
pro-
Each
eighth factor and the constitutional stan-
relating
vision
non-statutory
aggrava-
dard set forth
Court.
ting
§in
factors
3592 states as follows:
The government’s only argument
jury,
“The
or
jury,
court,
if there is no
*30
response is that
the existence of the may consider whether any
aggrava-
other
eighth category
“superfluous”
would be
ting factor for
given
which notice has been
if the
“any mitigating
words
3592(b),
(d)
factor” are
(c),
§
exists.”
(emphasis
given
added).
broader meaning,
govern-
3593(a)
but the
§
Additionally,
prescribes
ment
explain
fails to
any
how this list is
for which
pro-
“[t]he factors
notice is
may
non-statutory-aggravators provision
include
vided under this subsection
concerning
by
of the offense
supported
mitigation provi-
factors
the effect
family ...
provides
jury
the victim and the victim’s
sion: “The statute
that the
on
any
may
other relevant information.” Id.
consider
such determinations
in
3593(a)
added).
death,
(emphasis
reaching
§
its decision to recommend
just
permits
jury
as it
any
to consider
interpreta
circuits base their
Certain
mitigating
specified
factors not
in the stat-
plain language
tions on the
of the terms
Robinson,
sup-
ute.”
Even more mitigating factors: “the Court expressly compared cuits that have made clear that order mitigation provision terms found in the has also reliability! ‘heightened [in such non-statutory-aggrava- ]’ with those in the achieve sentence,] more evi- imposing the death provision tors order to establish the dence, less, on the should be admitted example, FDPA’s For expansiveness. aggravating presence or absence Fifth Circuit asserted that the breadth *31 Fell, mitigating factors.” United States v. Each of these subsections thus allows a (2d Cir.2004) (citing by jury 360 F.3d reevaluation the during penal- 2909). ty 203-04, phase of the same Gregg, presented evidence 428 U.S. during guilt phase. And, given that 3592(a) § Against backdrop, this must penalty phase way, is under this is be I read as inclusive. therefore cannot undoubtedly jury evidence that the found agree majority’s interpretation with the unpersuasive concerning one of the ele- provision, this or with its refusal to ad- ments of the during guilt offense dress the “circumstance of the offense” phase. Guzek, Oregon Cf. 3592(a)(8). §in language For these rea- L.Ed.2d sons, I believe the district court erred in (2006) (explaining that a capital defendant denying request Gabrion’s to admit evi- did not a right pres- have constitutional to relating dence to the location of of- ent new alibi evidence at a resentencing fense. conviction, for a prior but “to the extent it is evidence he introduced at time of [the
3. Residual Doubt trial], original he is free to introduce it now, form”). albeit in transcript Even assuming there is no constitutional right present to argu- majority’s residual-doubt conclusion that Gabrion ment, Gabrion should have been to is barred presenting allowed from evidence of the argument raise this under the location of FDPA. It the offense'—first because it disputed cannot be an extensively the FDPA “was issue litigated allows during proffer guilt phase defendant evidence of Gabrion’s trial” certain and sec- types ond jury of residual because the example, already doubt. For had “found may beyond a present defendant reasonable evidence that doubt “was killed Timmerman under unusual and inside the Forest”— substantial du- ress, therefore cannot regardless be extended of whether the to the duress was FDPA, principle as the degree relitigation such a all to constitute a defense precluded 3592(a)(2). under the FDPA would charge.” § to the 18 U.S.C. comport with plain language Similarly, of the permits the FDPA evidence that Maj. Op. statute. at 524-25. The FDPA capacity “[t]he defendant’s to appreciate expressly permits relitigation of elements wrongfulness of the defendant’s con- offense, of an and I cannot any logic see duct or to conform conduct to the require- an arbitrary determination that evidence ments of significantly law was impaired, concerning the location of the offense is regardless of capacity whether the was so one that must precluded. The district impaired as to constitute a defense to the court should have allowed Gabrion pres- charge,” and that “the partic- defendant’s ent residual-doubt evidence under ipation minor, relatively regardless of FDPA. whether participation was so minor as constitute defense to the charge.” Id. Finally, even if the FDPA does not re- (3). 3592(a)(1),
§ The FDPA also allows quire the court to instruct the on this present the defendant evidence that evidence, Gabrion’s counsel should not “[t]he defendant committed the un- offense have been presenting forbidden from der severe mental or emotional argument distur- in closing arguments, an issue 3592(a)(6). bance.” Id. left majority.6 unaddressed Lock- agree government's Gabrion that the argument anyway light made this is absurd in suggestion that Gabrion's counsel could have ruling specifically pro- district court’s
545 maximum be statutory must McCree, prescribed 106 476 U.S. v. hart (“Such jury proved beyond a (1986) to a and submitted 1758, 137 90 L.Ed.2d S.Ct. 490, U.S. at 120 doubt.” 530 reasonable as an recognized has been doubt residual The Court made Supreme 2348. S.Ct. for defen argument extremely effective Apprendi that the state’s use clear cases”) (internal quotation capital dants had no term “sentence enhancement” Mitchell, omitted); 708 Moore v. marks 476, Id. at 120 bearing inquiry. on the Cir.2013) (6th (recognizing 760, 788 F.3d pun “a faces S.Ct. 2348. When defendant theory); mitigation a doubt as residual by beyond that statute provided ishment 383, Mitchell, 394-95 v. 586 F.3d Webb cer an offense is committed under when Cir.2009) (6th (discussing residual-doubt others,” those circumstances not tain but denied, mitigation), at cert. theory raised increase in that lead to the circumstances 2110, 1076, 176 L.Ed.2d 130 S.Ct. 559 U.S. must be submitted authorized (2010); Coyle, v. 547 F.3d Hawkins 738 jury proven beyond a reasonable ato Cir.2008) (6th (noting arguing 540, 548 484, 120 at S.Ct. 2348. doubt. Id. was a “strate mitigation doubt at residual by the Court gy Supreme death-penalty endorsed” The rule is no different at time of Supreme Court ... question the Ohio dispositive “The cases. denied, 1989), 558 form, trial in cert. Ring of effect.” v.
defendant’s
one not of
but
553,
1013,
602,
2428,
385 Arizona,
584,
175 L.Ed.2d
122
130 S.Ct.
S.Ct.
U.S.
536 U.S.
Mitchell,
854,
(internal
(2002)
(2009);
quotation
209 F.3d
L.Ed.2d 556
Scott
153
Cir.2000) (decision
omitted).
(6th
by counsel
If
to “an
finding
leads
881-82
marks
mitiga
pun-
at
theory
in a defendant’s authorized
pursue residual-doubt
increase
unreasonable”),
ishment,”
by a
must
found
finding
cert.
be
“objectively
tion
reasonable,
588,
mat-
denied,
beyond a
doubt—“no
jury
148
531
121 S.Ct.
(2000).
it.” Id. For ex-
are
how the State
If
theories
labels
such
ter
L.Ed.2d
ag-
enumerated
ample, because Arizona’s
pursued by reasonable
positions
deemed
necessary for
factors are
gravating
counsel,
call them now
it is difficult to
they “op-
penalty,
imposition
the death
mitigation.
wholly irrelevant
equivalent of an
‘the functional
erate as
“Beyond
Rea-
Balancing
Factors
B.
offense,’
[and]
greater
of a
element
sonable Doubt”
they
Amendment requires
Sixth
at
122 S.Ct.
jury.”
Id.
found
on this issue
only
question
relevant
n.
1.
maxi-
“statutory
argued
state
ten
question was
the crime
increas- mum” for
“any fact that
Apprendi,
Under
under the statute
technically
years,
beyond
penalty for
crime
es the
Reh’g
Reply Br. on
Supplemental
tal
at
testimony.
hibiting this
See
21-22; Supplemen-
Reh’g
Br. on
Appellee
*33
at-303, 124
But
aggravating
requisite
was.
Id.
S.Ct. 2531.
the
factor and the
intent.
ignored
Blakely,
the state’s la-
specified
Apprendi),
fact
one of
terms, a
guilty
defendant found
an un-
(as
specified
Ring),
any
several
facts
or
derlying offense “shall be sentenced to
(as here),
aggravating fact
it remains the
if,
death
after consideration of the factors
jury’s
case that the
verdict alone does not
set forth
section 3592 in the course of a
authorize the sentence.” Id. at
hearing
pursuant
held
to section
it is
question
2531.
first
is therefore
imposition
determined that
of a sentence
question
simply
not a constitutional
but
a
3591(a).
justified.”
§
death is
18 U.S.C.
statutory one: What does the FDPA re- Section 3591 thus
instructs us
two
quire in order to sentence someone to
First,
meaningful ways.
§ 3591 directs us
death?
§to
3593 as a whole rather than to any
specific
Second, §
pro-
subsection.
Although it is
true
the FDPA for-
vides that a court cannot
a defen-
sentence
imposition
penalty
bids the
of the death
dant
jury
to death until the
determines
at
aggravating
unless
least one
factor list-
justified i.e.,
that death is
jury
after the
—
§
ed in
is unanimously
found
exist
weighs
aggravators
any
the
mitigators
beyond
doubt,
a reasonable
the
pen-
3593(e).
§
pursuant to
(under
alty
only
jury
is authorized
if the
statute)
then decides that “all
ag-
This
balancing
makes the
of factors a
gravating factor or factors found to exist
“fact”
sentencing purposes
under the
sufficiently outweigh all the mitigating fac- FDPA.
clearly
We were
instructed in
tor or
justify
factors found to exist
Blakely
a
‘statutory
“the relevant
maxi-
3593(e).7
sentence of
§
death.” 18 U.S.C.
mum’ is not
the maximum sentence a
made,
Before this
judge
determination is
a sen-
may impose after finding additional
tence
simply
option.
facts,
of death is
not an
but
may impose
the maximum he
factors,
Even when
mitigating
there are no
any
without
findings.”
additional
penalty
the death
303-04,
is still not
Here,
authorized
tence enhancement’ to describe
[one
makes no effort
explain why
a defen
procedural safeguards] surely does not dant
“death-eligible”
would become
upon
provide a principled
treating
basis for
finding
an
jury’s
aggravating factor.
differently.”).
them
lan-
Because
clear
Instead,
majority
cites Jones v. United
FDPA
guage
requires
jury
to States,
373,
2090,
527 U.S.
119 S.Ct.
144
balancing
conduct this
a
before
defendant
(1999),
L.Ed.2d 370
a pre-Apprendi case
death,
can
pan-
be
the merits
sentenced
squarely
issue,
that does not
address the
correctly
el
jury’s finding
held that “a
3593(e)
which in turn
general
cites
for a
aggravating
outweigh
factors'
the miti-
376-77, 119
proposition.8 Id. at
S.Ct. 2090.
gating factors is an element of the death
3593(e)
§But
does not include the term
beyond
and must be found
a rea-
“death-eligible,”
prescribe
nor does it
dopbt, the,
sonable
same standard constitu-
may
legally
death sentence
im
“a.
for,
tionally
findings
other
required
all.
posed
aggravating
unless at least one
fac
fact and mixed
of law
fact.”
questions
beyond
tor is found to exist
a reasonable
Gabrion,
at
648 F.3d
325.
doubt,” as
the Arizona
in Ring.
did
scheme
(in
597,
Ring, 536
at
122
U.S.
S.Ct. 2428
“Death-Eligibility”
quotation
ternal
marks and alteration
Rather
than adhere to the
omitted).
FDPA, finding
Under the
an
labels,
beyond
Court’s directive to look
aggravating
beyond
factor
a reasonable
majority
yet
throws
another label into the
many
doubt is one of
prerequisites to im
Specifically,
mix.
majority
contends
posing the death
penalty;
is not the
that a
“death-eligible”
defendant becomes
of no
point
return.
jury
statutory
the moment that the
a
finds
aggravating
beyond
factor
a
contrary
reasonable
must also note that
to the
532,
Maj. Op.
doubt.
at
majority’s suggestion, “death-eligibility”
533-34. Once
attaches,
Rather,
“death-eligibility”
majority
Apprendi.
not the cornerstone of
2902,
(2008);
8. The six circuit courts to have addressed this
128 S.Ct.
§
of discretion federal
tion on the extent
3593(e)
§
compares
majority also
The
imposing
have when
judges
district
should
3553(a),
today’s
deci-
implying
§with
permissible range.
within the
sentences
sentencing
impact
an
on
may have
sion
distinctions, I
critical
cannot
Given these
3553(a).
matter,
an initial
our
§
As
under
majority’s
conclusion
agree with
merely
today cannot be incorrect
ruling
3593(e)
3553(a)
indistinguish-
§
are
§
may
potential problems
reveal
because
Apprendi.
for the
purposes
able
3553(a)
§
interpreted
courts have
with how
the case
duty
Our
is to decide
to date.
II.
DIRE
VOIR
us,
controversy
not future cases
before
pre-
that have not been
or controversies
argues that his Sixth and Four-
Gabrion
to-
importantly,
But more
sented to us.
impartial
an
rights
Amendment
teenth
how
analysis
likely
impact
is not
day’s
court’s
by
violated
the district
were
3553(a) during noncapital
§
apply
courts
jurors
Spe-
for cause.
biased exclusions of
3553(a)
sentencing,
distinguishable
§as
ways in
cifically,
outlines three
3593(e)
purposes Apprendi.
(1)
from
rights
violated:
which these
were
instructs
parsimony provision
by excluding
ju-
four
district court erred
impose
“greater
a sentence no
judge to
against
penalty,
the death
rors who leaned
necessary”
remaining
to achieve the
than
(2)
having
erred
the district court
objectives listed in the statute.
sentencing
jurors
leaned in favor
excluded three
who
3593(e),
§in
such a
weighing
(3)
Unlike the
the district
penalty,
of the death
*37
statutory
finding does not
increase
court’s exclusion and inclusion of these
3553(a)
maximum; indeed,
many ways
in a
tilted toward
jurors resulted
venire
restating
principle
Congress
is
majority
The
deems
capital punishment.
statutory maximum is the “maximum [the
light
arguments
each of these
meritless
without
may impose
additional
court]
afforded to the
of the broad discretion
303-04,
findings.” Blakely, 542 U.S.
at
selecting
jury.
court
Be-
district
when
S.Ct.
im-
I believe that the district court
cause
jurors,
result-
excluded two
which
properly
Furthermore,
if
could call it a
even we
capital
tilted in favor of
ed in a venire
“[¡Judicial factfinding in the
factfinding,
agree.
I cannot
punishment,
a sentence within the
selecting
course of
implicate the
range
authorized
does not
Anti-Death-Penalty
A. Exclusion
indictment,
jury-trial,
and reasonable-
Jurors
components of the Fifth and Sixth
doubt
States,
Amendments.” Harris v. United
argues that his death sentence
545, 558,
the exclusion
153 is unconstitutional based on
S.Ct.
(2002).
jurors who were
“[NJothing
death-qualified
of four
[our]
L.Ed.2d 524
from the venire:
improperly
it
excluded
history suggests
impermissible
is
Hemmeke,
Abrahams, Donahey,
taking
judges
for
to exercise discretion —
majority rejects
argu-
relating
The
into
various factors
Groves.
consideration
ment,
a district
imposing
highlighting
discretion
both to offense and offender—in
jury. The voir-
range prescribed
within the
by
selecting
holds in
court
judgment
demonstrates, however,
transcript
Apprendi,
at
120 dire
statute.”
530 U.S.
Donahey
each
that both Abrahams
parsimony provision
2348. The
does
S.Ct.
despite
times that
clearly
multiple
stated
range pre-
or contract
expand
not
personal misgivings
their
‘Well,
about the death
I think there are two issues here.
penalty, they would be able to follow the He can consider both.... Would he—not
instructions of the district court
he,
and follow
impose
would
could he
either one?
their oaths.
requires.
This is all the law
says
And when it
could
impose
he
either
one,
government’s
on the
question and on
government
a significant
faces
bur
my question he
said don’t know. Now he
den when it
juror
wishes to remove a
for
says he’ll consider
it.”
2 Jury Trial
cause,
“power
for its
to exclude for cause
562:19-24. The district court then rea-
jurors
capital juries
from
does not extend
soned that although “normally I
say
would
beyond its
in removing
interest
ju
those
says
if he
I’ll
them,
consider both of
that’s
rors who would frustrate the
legiti
State’s
normally
right.
all
But if it’s preceded
mate interest
in administering constitu
Iwith don’t
if I
know
could do it and then
capital
tional
sentencing
schemes
not
him,
I ask
you,
Could
says
I don’t
following their oaths.” Gray v. Mississip
know, I think
grounds
it’s
for excusal.”
pi
648, 658,
481 U.S.
Id.
563:2-6. The district court coined
(1987).
L.Ed.2d 622
govern
When the
this a
question,”
“close
but ultimately de-
ment
juror
bias,
seeks to exclude a
termined
grounds
“it’s
for excusal because
demonstrate,
“must
through questioning,
of his hesitancy
honesty
and the
potential juror
that the
lacks impartiality.
approached
which he’s
it.” Id. at 563:6-8.
It is then
trial judge’s duty
to deter
mine
challenge
whether
proper.”
matter,
As an initial
is important
“[i]t
Illinois,
Morgan
112 remember
that not all who
oppose
(1992) (inter
tions of the
I would vacate Gabrion’s
omitted);
marks and citation
see also id. at
sentence.
J.,
1. Abrahams try ishment can the case according to the The district court explained its evidence, reason- law because the law does ing for excluding Abrahams as follows: not contain the inexorable of an command (internal or a life sentence is appropriate tence is quotation marks eye.”)
eye for an omitted). appropriate? point, At ABRAHAMS: JUROR context, hesitancy Abrahams’s Taken I yes, I do believe that could. weigh the to how he would
clearly relates in order to could consider mitigators STEBBINS: You MR. aggravators decision, not to whether that? an ultimate reach in such a task. engage
he would be able I ABRAHAMS: could consider JUROR that the former does And it is clear it, yes. requires partiality
reflect the sort think you And don’t MR. STEBBINS: hesitancy cause. Abrahams’s excusal for had, your thoughts you’ve anything ques- during the initial line of is first seen you’ve had over the last these concerns tioning: you from prevent of weeks will couple you do that if the THE Could COURT: making that determination? and the law of this Court instructions I don’t think it ABRAHAMS: JUROR that? dictated me, no, just It’s prevent would sir. Um, I believe on ABRAHAMS: JUROR that I wish to be heard. consideration my I said questionnaire all I That’s had. of the death judgment be fair would court the district Id. 560:6-20. When past couple But in the sentence. questioning, Abrahams did reconvened its unclear, really I’m I’m not but weeks ability impose to his not waffle as outweigh the unsure of if I could more sentence, major- death as described imprisonment of life over sentence Rather, clearly for a ity. Abrahams stated just something It’s or vice versa. death sen- imposing third time that or—excuse I’ve never had to deal with seriously something he “could con- tence is me, it’s—so were if the facts and circumstances sider Right. ap- THE That can be COURT: open for consideration.” such that was inquiry I think the at this preciated. repeated Abrahams then Id. at 561:6-9. your if you up if made mind or point is hesitancy as to which he would his earlier facts and follow the you would follow the choose: law— that I trying express, what I’m That’s Yes. JUROR ABRAHAMS: go I could don’t know for sure fairly, THE —and be able to COURT: and, instance, through the whole trial if either one of them impartially impose guilty go him and then prove them that. the evidence and the law dictated part of the trial for through the second *39 Yes, ABRAHAMS: sir. JUROR say impris- that I could life sentencing, honestly I don’t onment or death. attorney Jury Trial Gabrion’s 554:3-19. try- I point That’s the that was know. questions: then asked Abrahams similar Very unsure of what get to across. ing Now, you ... do MR. STEBBINS: to, way. say yes I or no either could at you options think can consider these Here, Abrahams is not evidence and Id. at 561:15-22.9 point, listen to this would stating personal viewpoint that a the death sen- fairly consider whether imposing a juror sen- important with would be unable to consider It to note that unlike 9. Groves, reasoning giving his tence of death. When Gabrion also chal- whose exclusion Groves, "I regarding the district court stated note lenges, district court did not make Yes, saying, I could context of his any Abrahams think in the indications that nonverbal finding stating him from that death is adamant in preclude tempo- he would Rather, justified. expressing rarily yield he is he these beliefs to fulfill duty notion of how he preconceived has no juror. as a initially questioned by When unique process, would react to this and the court as to his moral regarding views nervousness, “neither emotional involve penalty, Donahey responded death as ment, inability deny or nor confirm follows: equivalent effect whatsoever is to an un No, THE COURT: I understand. And
willingness inability part or an on the question so the comes down to whether jurors to follow the court’s instructions you impose you could or whether oaths, obey regardless their of their yourself would find unable to. Adams, feelings penalty.” about death Okay. JUROR DONAHEY: So I inter- 50, 100 at 2521. preted mean, that as whether —I if it Concerning the statements to which the toupwas me. majority directs admis- us—Abrahams’s Oh, THE okay. COURT: sion that his moral values would be on his JUROR DONAHEY: You know what mind deliberating while as to life or I’m saying? way interpret- That’s the I death —the Court has stated that you’re ed it. saying So that if all the government jurors cannot “exclude factors came mitigating, out be- only respon- whose fault was to take their says cause the possibility, law it’s a special sibilities with to ac- seriousness or somebody could suppose, find it. And I knowledge honestly they might or personally be, as distasteful as it would 50-51, might not be affected.” Id. go would have to with it. juror consistently S.Ct. 2521. If a states that he to apply would be able the law to THE COURT:- Which means? beliefs, notwithstanding
the facts
his moral
JUROR DONAHEY:
I would follow
he cannot be
for cause.
excluded
Abra-
what the law would tell me to do on that.
rehabilitation,
sug-
hams did not resist
as
1 Jury
Donahey
Trial 93:18-94:7.
thus
gested by
majority;
simply
contin-
squarely
category
jurors
falls
within the
express hesitancy
great
ued to
as to the
being
described in Lockhart as
death-qual-
responsibility he
undertaking
would be
personally oppose
ified—those who
juror,
which has never been sufficient to
penalty yet
ability
put
affirm their
require
majority’s
exclusion. The
stated
their views to the side in order to adhere
reasons for
upholding
district court’s
juror.
to their oath as a
476 U.S. at
contrary
exclusion of Abrahams are thus
death sentence on ground for the rea 3. Groves sons stated above.
Although agree I the majority III. CONCLUSION the first two given by reasons the district court Groves, were sufficient to exclude I For all of reasons, these I respectfully do not agree with the district court’s insin- dissent. would vacate Gabrion’s sen- uation that Groves could have been exclud- tence of death and pen- remand a new ed based on his view that the death penal- alty hearing. ty cases, be should reserved for extreme such as involving those mass murders.
Jury Trial 885:1-2. Court expressly
has stated jurors “cannot be
excluded for cause simply they because
indicate that there are some of cases kinds they which would refuse to recommend capital punishment.” Witherspoon, 391 America, UNITED STATES of 1770; n. see also Plaintiff-Appellee,
Gregg,
cases to may sentence well Phillip ZABAWA, Defendant-Appellant. reflect feeling the humane that this most No. 11-1519. irrevocable sanctions should be reserved cases.”). for a small number of extreme United Appeals, States Court of This is “a prospective juror because cannot Sixth Circuit. expected to say in advance of trial Argued: Oct. 2012. whether he would fact vote for the extreme the case him.” before Decided and Filed: June Id.
B. Venire Tilted Capital in Favor of
Punishment
Contrary to assertion, the majority’s Ga-
brion has identified a constitutional basis
for his claim that jury-selection pro-
cess lopsided: criminal “a defendant