United States v. McGriffUnited States v. McGriff
AMENDED MEMORANDUM AND ORDER
In this multi-defendant prosecution, the Government alleges that defendants Kenneth McGriff (“McGriff’), Dennis Crosby
On March 23rd, the defendants jointly moved to strike the death-penalty notices because they were not filed “a reasonable time before the trial,” as required by
BACKGROUND
A. Anatomy of a Death-Penalty Case
1. The Statutory Framework
The Federal Death Penalty Act of 1994,
The Act contains the following notice provision:
If, in a case involving an offense [eligible for the death penalty], the attorney for the government believes that the circumstances of the offense are such that a sentence of death is justified under this chapter, the attorney shall, a reasonable time before the trial or before acceptance by the court of a plea of guilty, sign and file with the court, and serve on the defendant, a notice—
(1) stating that the government believes that the circumstances of the offense are such that, if the defendant is convicted, a sentence of death is justified under this chapter and that the government will seek the sentence of death; and
(2) setting forth the aggravating factor or factors that the government, if the defendant is convicted, proposes to prove as justifying a sentence of death.
2. The Decision-Making Process
The decision whether to seek the federal death penalty unfolds in two stages. At
a. First Stage
The first stage begins pre-indictment; the U.S. Attorney should, “whenever possible, make a preliminary decision whether to request authorization to seek the death penalty before obtaining an indictment charging a capital offense.”
Id.
§ 9-10.020. Moreover, if the indictment, once obtained, charges a violation of
The Attorney General’s protocols further require that before the U.S. Attorney makes his or her final decision, the defendant shall have “a reasonable opportunity to present any facts, including any mitigating factors, to the United States Attorney for consideration.”
Whether the Death Penalty Committee makes a recommendation to the U.S. Attorney or simply works up the case is unclear, but the fruits of its efforts are submitted to the U.S. Attorney, after which she makes her recommendation to the Attorney General. Neither the work-product of the Death Penalty Committee nor the U.S. Attorney’s recommendation is disclosed to the defendants or the Court.
If the U.S. Attorney recommends the death penalty, the Attorney General’s protocols require submission of a “Death Penalty Evaluation” form and a memorandum outlining the prosecution, along with “copies of all existing, proposed, and superseding indictments, a draft notice of intention to seek the death penalty, any information concerning the impact on the victim’s family, and any written material submitted by counsel for the defendant in opposition.” Id. § 9-10.040. These materials are to be submitted “[no] later than 45 days prior to the date on which the Government is required, by an order of the court or otherwise, to file notice that it intends to seek the death penalty.” Id.
If the U.S. Attorney’s recommendation is that the death penalty should not be sought, the protocols require only “a Death Penalty Evaluation form that contains a brief statement of the reason the United States Attorney decided not to seek the death penalty,”
id.;
it “should be completed and forwarded to the Criminal
b. Second Stage
The second stage of the decision-making process begins upon receipt of the U.S. Attorney’s recommendation. The Attorney General’s Review Committee on Capital Cases (“Attorney General’s Committee”) reviews the U.S. Attorney’s submissions. See id. § 9-10.050. The defendant’s attorney is “provided an opportunity to present to the committee the reasons why the death penalty should not be sought.” Id.
“After considering all information submitted to it, the [Attorney General’s] Committee ... make[s] a recommendation to the Attorney General,” who then renders “the final decision.”
Id.
If the decision is to seek the death penalty, the U.S. Attorney then files a death-penalty notice, which must identify (1) the charges for which the death penalty is sought, and (2) the factors, both statutory and non-statutory, that the Government intends to prove at trial to warrant the imposition of the death penalty.
See
As evidenced by the Government’s decision to withdraw the death-penalty notices against McGriffs co-defendants, the decision to seek the death penalty is subject to reconsideration.
See
USAM §§ 9-10.055 (“Subsequent to the initial Department of Justice review, the United States Attorney and the Attorney General’s Committee shall review any submission defense counsel chooses to make.”)
&
9-10.090 (providing procedures for withdrawal of notice of intent). By the same token, the protocols do not foreclose the Attorney General from revisiting a decision not to seek the death penalty; the only apparent limitation is the notice provision of
B. Nature of the Charges
Both capital and non-capital charges are contained in the indictment. The capital charges stem from the alleged murders of (1) Eric Smith (“Smith”), (2) Karon Clar-rett (“Clarrett”), (3) Dwayne Thomas (“Thomas”), and (4) Troy Singleton (“Singleton”).
4
On November 2, 2004, the grand jury indicted Brown and Crosby for Smith’s murder; the crime was charged as a murder in aid of racketeering under
On January 18, 2005, the grand jury handed down a First Superseding Indictment, which (1) charged McGriff with the Smith murder, and (2) charged Wright with the Clarrett and Thomas murders.
5
Like the Smith murder, the Clarrett and Thomas murders were charged as violations of
On June 23, 2005, the grand jury handed down a Second Superseding Indictment, which charged McGriff and Crosby with the Singleton murder under
On January 13, 2006, the grand jury handed down a Third Superseding Indictment. It charged Mosley under
On March 10, 2006, the grand jury handed down a Fourth Superseding Indictment. It added the attempted murder of “Jane Doe” to the list of predicate offenses in the non-capital racketeering charges against McGriff, but did not alter the capital charges.
Up to this point, none of the indictments had specified any of the aggravating factors listed in
C. Events Leading to the Setting of the April 3rd Trial Date and the Filing of the Death-Penalty Notices
The first mention of a trial date came at a status conference on September 9, 2005. At that time, Chief Judge Korman set the trial for March 6, 2006; he stated, however, that it was “contingent” on the case proceeding as a non-capital case. See Tr. of Sept. 9, 2005, at 28; see also id. (“THE CLERK: So, March 6 is the jury selection and trial if it’s a non-death penalty case.”). Chief Judge Korman thought it was important to fix a trial date that far in advance “because in a multi-defendant case, it’s hard to get everyone [together].” Id.
The Death Penalty Committee did not meet until January 12, 2006. See Letter from Carolyn Pokorny (Mar. 3, 2006), at 2. Two weeks later, Chief Judge Korman held a status conference to address the continued viability of the March 6th date. Two days before the conference, McGriff s learned counsel submitted a letter stating his position that trial should go forward as scheduled, and that hé would “oppose any motion brought by the Government to adjourn the trial date,” Letter from David A. Ruhnke (Jan. 24, 2006), at 1; he further stated that “any [death-penalty] decision reached between now and March 6 would constitute inadequate notice.” Id.
At the conference, the AUSA stated that the U.S. Attorney’s recommendation would “go down to Washington, if not today then
After considering the Government’s reasons for the requested adjournment and the availability of counsel, Chief Judge Korman rescheduled the trial for April 3, 2006, as a firm date, on the “assumption that there’s no death penalty.” Id. at 20; see id. (“MR. RUHNKE: Your Honor, do we understand correctly that the April 3 trial date is a firm date and if the government hasn’t gotten this decision by then, we’re going — THE COURT: We’re going. It’s a non-death penalty case.”).
Another status conference was held on February 16, 2006, after the case had been reassigned. In response to the Court’s inquiry as to the status of the death-penalty decision, the AUSA stated:
When we last appeared before Judge Korman, I had hoped that we would be sending down our recommendation to Washington imminently. As of today it has not gone out yet.
Tr. of Feb. 16, 2006, at 4. When the Court inquired about the reason for the delay, the AUSA explained that “part of it is [when] the defense attorneys got in their [mitigation] memos.... [W]e got our most recent one in January, so I can’t say that the delay has all been on the part of the government.” Id. at 7-8. The January submission was apparently Crosby’s, submitted on January 3, 2006; McGriffs was submitted the month before, on December 9, 2005, Wright’s on September 26, 2005, and Brown’s on August 31, 2005. Since Mosley was not indicted until January 13, 2006, the U.S. Attorney had presumably decided that it would no longer be fair to the other defendants to wait for a mitigation memorandum from Mosley before making her death-penalty recommendations, 7
The AUSA also expressed her doubt that the death-penalty decision would be made by April 3rd. Having previously told the Court that the trial would take approximately three or four weeks, see Tr. of Jan. 26, 2006, at 11, she thought that “the next point in time when there are mutual dates that all the attorneys could try it is in October.” Tr. of Feb. 16, 2006, at 6. Given the uncertainty of counsels’ collective availability in the near future, the Court stated:
We really should make our best efforts to adhere to the April date and you can tell the U.S. Attorney and Washington, whatever else you can do, if we cannot meet that date I can’t say when this case is ever going to be tried and it is going to result I would suspect in a lot of severance situations, multiple trials and just a mess.
Id. at 10. Counsel for McGriff, Crosby, Wright and Brown confirmed that they were ready to try the case on April 3rd; Mosley’s counsel promised to do “whatever [he] could” to be ready for trial on April 3rd, but wasn’t “certain that [he would] be able to do that.” Id. at 11.
A further status conference was held on March 3, 2006. In the interim, the U.S. Attorney had sent her death-penalty recommendations to Washington on February
After carefully listening to all parties, and acknowledging that it was confronted with a “delicate balancing act” of competing concerns, id. at 10, the Court denied the Government’s request for a further adjournment:
Let’s go forward with [the April 3] date. You’ll have to tell Washington that’s what we’re doing.... I’m not making an irrational judgment, I’m adhering to what Judge Korman initially set down.
Id. at 14. In doing so, the Court recognized the impossibility of accommodating all parties. See id. at 17 (“I’m trying to accommodate everybody. I can’t do it.”).
On Friday, March 17, 2006, the Attorney General’s Committee invited defense counsel to travel to Washington to make mitigation presentations, which they did on the following Monday and Tuesday, March 20th and 21st. On March 21st, the Attorney General authorized the U.S. Attorney to seek the death penalty for all five defendants; as noted, the death-penalty notices were filed the following day. In the notice for McGriff, the Government expressed its intent to seek the death penalty for his alleged role in both the Smith and Singleton murders. As aggravating factors for each of those murders, the notice alleged that McGriff had
• “procured that commission of the offense by payment”;
• “committed the offense after substantial planning and premeditation”; and
• “previously been convicted of engaging in a continuing criminal enterprise,”
Notice of Intent to Seek the Death Penalty (McGriff), at 2, 5 (citing
DISCUSSION
Although
A. Existing Case Law
In
United States v. Colon-Miranda,
In reaching that conclusion, Judge Fusté “look[ed] for guidance in the constitutional jurisprudence surrounding the Sixth Amendment right to a speedy trial.” Id. at 35. Based on that jurisprudence, he reasoned that
the determination of what constitutes “a reasonable time” must balance such factors as: The length of time between the notice of intent to seek the death penalty and the trial or plea; the reason for any delay; the nature of the government’s conduct; and the prejudice to defendant from delay.
Id.
(citing,
inter alia, Barker v. Wingo,
One week before the trial date, the Attorney General re-authorized the death penalty for those defendants under reconsideration. Not surprisingly, Judge Fusté adhered to his prior ruling.
See United States v. Colon-Miranda,
The government has had months to revive its notice to seek the death penalty. We simply cannot postpone this trial for several months to allow defense counsel to prepare for a capital case when this case has been scheduled for months and the government did not bother to announce its actual intention to seek the death penalty until the eleventh hour. Basic due-process principles of speedy trial jurisprudence and judicial economy persuade us not to exercise our discretion to continue or sever the case.
Id. at 39.
Colon-Miranda
was the only reported case interpreting
Writing for a 2-1 majority, Judge Luttig held that the circuit court had jurisdiction to review the district court’s order under the collateral-order doctrine.
See id.
at 726. Turning to the merits, Judge Luttig viewed
Prejudice in [this] sense ... is akin to harmless error. And, of course, the harmlessness of an error is determined (and necessarily so) only after an antecedent conclusion that there was in fact an error committed. To inform resolution of the question of whether the statute has been violated by a prejudice inquiry is, pure and simple, to confuse the question of harmlessness with the question of violation.
Id.
Judge Luttig then set forth the basic factors to be considered in lieu of actual prejudice to determine whether a death-penalty notice was filed an “objectively reasonable” time before trial to allow for the preparation of a death defense:
To judge an accused’s challenge to the reasonable timeliness of a Death Notice requires evaluation of, among other factors that may appear relevant, (1) the nature of the charges presented in the indictment; (2) the nature of the aggravating factors provided in the Death Notice; (3) the period of time remaining before trial, measured at the instant the Death Notice was filed and irrespective of the filing’s effects; and, in addition, (4) the status of discovery in the proceedings.
Id. at 737.
With regard to the third factor, Judge Luttig noted that “[i]f
no
date of trial is identifiable, then the interval between the date of filing and that yet unknown and unidentified date cannot be measured. And if the interval cannot be measured, then the court cannot reach conclusions, as the statute requires, about the objective reasonableness of that interval.”
Id.
at 738 (emphasis in original). The court was unable to determine the objective reasonableness of the notice at issue because “[t]he record d[id] not clearly reveal whether, at the instant the Death Notice was filed, a date existed on which Ferebe’s trial was set to begin.”
Id.
at 738.
9
Ac-
In dissent, Judge Niemeyer believed that the circuit court lacked jurisdiction to hear the interlocutory appeal because in his opinion “the guide for determining a ‘reasonable’ time must focus on the preparation denied or adversely affected by a notice allegedly given late.” Id. at 748 (Niemeyer, J., dissenting). Given this view, the case was not meet for interlocutory review since “ultimately the adverse effect of preparation can only be measured by the defense that the defendant presented at trial.” Id.
In making that post-trial assessment, Judge Niemeyer believed that the prejudice prong of the speedy trial analysis would have its place, and set forth the following factors that he thought should govern such post-trial determination:
I would conclude that a court should at least consider (1) the nature of the charges made in the indictment; (2) the nature of the aggravating factors provided in the death penalty notice; (3) the period of time before trial that the notice was received by the defendant; (4) any actual notice that the defendant had received before the formal notice was filed and the extent to which the defendant was able to prepare based on that notice; and (5) the prejudice that the timing of the formal notice has on the defendant’s preparation for trial and on his presentation of the defense.
Id.
Judge Luttig, in reiterating that prejudice had no place in his objective reasonableness analysis, rejected all analogies to speedy-trial claims. First, he noted that the speedy-trial right “is unique in that it belongs to
both
the defendant
and
society,” while
■ Despite their differences as to when and how the reasonableness of notice is to be assessed, there is a small patch of common ground between the two opinions in
Fer-ebe.
Both Judge Luttig and Judge Niem-eyer agreed that, whether applying the former’s pre-trial “objective reasonable
Because the majority was unable to determine whether the death-penalty notice was filed an objectively reasonable time before trial,
Ferebe
contains no express holding on the issue of remedy. Judge Luttig stated, however, that the timing of a death-penalty notice must be assessed “as of the moment of the Death Notice’s filing, and
irrespective of that filing.” Id.
at 737 (emphasis added). Judge Niemeyer noted that this would “present the district court, in effect, with only the options of striking the notice or not striking the notice,”
id.
at 749 (Niemeyer, J., dissenting), and, therefore, would “den[y] the court any flexibility in managing the period of trial preparation by scheduling or postponing trial to give the defendant a reasonable time to prepare.”
Id.
He did not, however, explain how the district court would determine prior to trial whether a continuance would be required, commenting only that “a violation of
Several
district courts bound by Fourth Circuit precedent have had to apply
Fer-ebe.
On remand in that case, the district court calculated that the trial was firmly scheduled to begin 39 days after the filing of the death-penalty notice, and held that, considering the requisite objective reasonableness factors, such an interval was “not enough time for Ferebe to have prepared his death defense.”
United States v. Ferebe,
The district courts bound by
Ferebe
have uniformly interpreted Judge Luttig’s holding to mean that “delaying the trial date is not a remedy for an untimely Death Notice,”
Hatten,
In
United States v. Pepin,
In sum, the existing cases divide on both issues now confronting the Court. With regard to the proper test for determining whether a death-penalty notice was filed a “reasonable time before the trial,” as required by § 3593(a), Judge Fusté and Judge Niemeyer (with a nod of approval from the Southern District of Florida) espoused the view that, as with speedy-trial claims, the proper inquiry balances competing interests, with particular emphasis on prejudice to the defendant. Judge Lut-tig (and the courts bound by his majority opinion) have held that the proper test is one of “objective reasonableness,” rejecting the notion that prejudice has any role to play in that assessment. Although Judge Luttig and Judge Fusté disagreed on the proper standard, they agreed that the issue should be addressed before trial, while Judge Niemeyer took the position that the timeliness of a death-penalty notice could only be assessed after trial.
With regard to the proper remedy, the divide is less explicit, but present nonetheless. Judge Fusté was obviously of the opinion that striking the death-penalty notice pre-trial can be a proper remedy for a violation of § 3593(a).
See Gomez-Olmeda,
B. The Court’s Approach
1. Standard for Reasonable Notice
With regard to the first issue, the Court agrees with Judge Luttig’s conclusion that the notice requirement of § 3593(a) “must be interpreted to require an inquiry into the objective reasonableness of the time between issuance of the Death Notice and the trial itself.”
Ferebe,
Moreover, if actual prejudice were to be the determinant, it could, as Judge Neim-eyer correctly reasoned, “only be measured by the defense that the defendant presented at trial,”
Ferebe,
Therefore, to the extent prejudice should be considered at all, it must be limited to an assessment of
potential
prejudice.
See, e.g., Colon-Miranda,
The Court also rejects Judge Niemeyer’s notion that a court should consider “actual notice that the defendant had received before the formal notice was filed and the extent to which the defendant was able to prepare based on that notice.”
Ferebe,
Having decided that actual prejudice and actual (but not formal) notice are
not
proper factors bearing upon objective reasonableness, the Court believes that all of Judge Luttig’s factors make sense, with one qualification: It is unlikely that a firm trial date would be fixed by the court if significant discovery remained; therefore, it is difficult to understand how the status of discovery would enter into the mix as a separate factor. In any event, as Judge Luttig recognized, other factors “may ap
2. Remedy for Unreasonable Notice
Although the statute is silent with respect to remedy, there are only two possibilities that would ensure that a defendant would not be compelled to defend against the death penalty without adequate notice: striking the notice or granting a continuance. In the Court’s view, either may prove to be the appropriate remedy in a given case; thus, the Court rejects both the extreme view, followed in the Fourth Circuit, that “an untimely Death Notice cannot be rescued by delaying the trial date,”
Cuong Gia Le,
In striking that balance, the Court believes that the question posed in
Barker v. Wingo
in assessing the right to a speedy trial — “how long is too long in a system where justice is supposed to be swift but deliberate,”
The first factor — the length of the delay — is straightforward. It bears noting, however, that while the relevant interval with respect to the issue of objective reasonableness is the time between the filing of the death-penalty notice and trial, the relevant interval at the remedy stage starts when the defendant becomes eligible for the death penalty and ends with the filing of the notice.
As for the second factor — the reasons for the delay — the Court should consider delays attributable to both the defendant and the Government.
Cf. McNeely v. Blanas,
A deliberate attempt to delay the trial in ' order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.
Id. (footnote omitted).
As for the third factor — the defendant’s assertion of his right — a defendant who has acquiesced in a protracted decision-making process has a less compelling claim to strike an untimely notice than a defendant who has consistently pressed the Government to make a prompt decision. Cf
. Wingo,
3. Summary of the Court’s Approach
In sum, to decide whether § 3593(a)’s notice requirement has been violated, the Court must determine — based on the nature of the charges, the nature of the aggravating factors, and the time remaining before a firm trial date — whether the defendant has been given an objectively reasonable amount of time to prepare a death defense. If not, then the Court must determine the proper remedy — either striking the notice or granting a continuance — by considering the length of the delay, the reasons for the delay, the defendant’s assertion of the right to a timely adjudication of the charges, and the prejudice suffered by the defendant because of the delay. The Court’s ultimate goal should be to choose the remedy that allows the Government to decide whether to seek the death penalty with adequate deliberation, but without unduly compromising the fair administration of justice.
C. Application to Present Case
1. The Notice Was Not Filed an Objectively Reasonable Time Before Trial.
The first issue merits little discussion. By the time the Government filed its death-penalty notice against McGriff on March 22, 2006, only 12 days remained until the April 3rd trial date. The Court has no difficulty concluding that 12 days is not an objectively reasonable amount of time to prepare for a capital case.
The first two relevant factors in assessing the notice issue — the nature of the capital charges and of the aggravating factors alleged in the death-penalty notice— confirm that conclusion. While the Court doubts that 12 days would ever be adequate notice in even the most straightforward homicide prosecution, the capital charges against McGriff are complex, stemming from his alleged role as the head of an extensive and ongoing criminal enterprise that had solicited the murders; regarding the aggravating factors, the Government intends to prove that both murders were, in essence, murders for hire that involved extensive planning and preparation, and with regard to the Smith murder, a grave risk of death to others. Twelve days is simply not enough time to prepare a death-penalty defense under these circumstances.
With regard to the third factor, the Government contends that the April 3rd date was not a firm one and claims that all parties and the Court understood that a continuance would be forthcoming if death notices were filed. The record belies that contention. Both Chief Judge Korman’s and my statements at the various status conferences reflect that, although sensitive to the time a decision might take in a five-defendant case, we were both increasingly concerned about continued delay. By the time of the January 26th conference, it was clear that whatever decision the Government might subsequently make, trial was scheduled to begin on April 3rd.
2. The Proper Remedy for the Untimely Notice is Severance and Continuance.
The factors relevant to the remedy issue require the Court to deny McGriff s motion to strike the death-penal
Regarding the length of the delay, credible statistics disclose that the average interval between death-penalty eligibility and the filing of a death-penalty notice is approximately eight months. 13 In McGriff s case, the interval was somewhat above average (9 months) with respect to Singleton’s murder and significantly above average (14 months) with respect to Smith’s; thus, this factor weighs slightly in McGriff s favor.
With regard to the reasons for the delay, analysis is aided by dividing the delay into three stages: (1) the time between the indictments for the Smith and Singleton murders and the time when the Death Penalty Committee met on January 12, 2006; (2) the time between that meeting and the U.S. Attorney’s recommendation to the Attorney General on February 24, 2006; (3) the time between that recommendation and the filing of the death notice on March 22, 2006.
As for the first stage, the Government posits two justifications for the passage of these periods of time: (1) that there was an ongoing investigation into McGriffs role as the alleged leader of the criminal enterprise and his connection to the murders giving rise to the capital charges; (2) that, because it adheres to a practice of evaluating death-eligible co-defendants together, the U.S. Attorney waited until all defendants (except for the recently indicted Mosley) had submitted their mitigation memoranda before making her recommendations. See Government’s Mem. of Law in Opp. to Defs.’ Mot. to Dismiss Notices of Intent to Seek the Death Penalty at 26-27.
In respect to the first justification, the Government’s representation that its investigation of McGriff was ongoing is borne out by the Second Superseding Indictment of June 23, 2005, which added the Singleton murder to the capital charges against McGriff and Crosby; and more recently, by the Third Superseding Indictment of January 13, 2006, which, in addition to implicating Mosley in the Smith and Singleton murders, alleged that those murders had been procured by payment. The Court has no reason, nor has any been proffered, to question the bona fides of this representation.
However, the second justification gives the Court some pause because it holds an individual defendant who has expeditiously submitted his or her mitigation statement hostage while the Government waits for the other submissions. A good example of the unfairness of this approach to a particular defendant is reflected in Brown’s case: She has been held without bail since first indicted on November 2, 2004, as an aider and abettor for conducting surveillance in connection with the Smith murder; apparently no new facts pertaining to her role have since surfaced. Moreover, she submitted her mitigation statement on August 31, 2005, and has persisted in wanting to go to trial. There appears to be no reason why there could not have been a more expeditious death penalty determination as to her; in addition to the obvious fairness to this defendant, who, after submitting her mitigation statement had to wait more than seven months before learning that the Government would not attempt to put her to death, a more timely determination would have saved the needless expenditure of tax dollars for the
Nonetheless, McGriff is not in the same posture as Brown, whose circumstances might very possibly have tipped the balance in favor of striking her death notice had it not been withdrawn. McGriff is responsible for a good portion of the time it took the U.S. Attorney to make her recommendations, as his mitigation memorandum was not filed until December 9, 2005, almost 11 months after he was first indicted. The Death Penalty Committee met just one month later. Certainly, the Government cannot be faulted for not making a recommendation as to McGriff until it had received his mitigation statement.
However, McGriff bears no responsibility for the approximately six weeks that elapsed during the next stage — the time between the Death Penalty Committee’s meeting and the U.S. Attorney’s recommendations. Although no reason has been offered for this delay, the Court cannot say that it was inherently unreasonable, although it did prevent the Attorney General from having 45 days to make his decision, as contemplated by his protocols.
The final stage lasted just a month. This was not too long a period of time for the Attorney General to give the full deliberation which the gravity of the decision warranted.
To the extent the last two factors — the defendant’s demand for a prompt death-penalty decision and prejudice occasioned by the delay — weigh in favor of McGriff, they are counterbalanced by the late submission of McGriff s mitigation statement and the relatively reasonable period of time it subsequently took the Government to reach its decision. Moreover, with regard to the third factor, the record does not reflect that McGriff s learned counsel made any demands on the Government to speed up its decision-making process before January 24, 2006, when he took the position that any death-penalty notices filed thereafter would be untimely. 15
CONCLUSION
McGriffs motion to strike the death-penalty notice is denied; his case is severed and a new trial date will be set. Trial against the other defendants will proceed as scheduled.
SO ORDERED.
Notes
. The sixth defendant, Vash-Ti Paylor, who was not eligible for the death penalty, has pleaded guilty pursuant to a plea agreement. "Defendants” hereafter refers to the five other defendants.
. In addition, the Anti-Drug Abuse Act of 1988 contains its own death-penalty provision for murders committed in the course of certain drug offenses,
see
. By this point in the proceedings, the defendant is represented by two attorneys, one “learned in the law of capital cases.”
. The non-capital charges allege racketeering under
. The First Superseding Indictment also added non-capital charges against Irving Lorenzo, Christopher Lorenzo, MI Records, Inc., IG Records, Inc., and Cynthia Brent. Of these defendants, Brent pleaded guilty on September 21, 2005, and the remaining four were acquitted on December 2, 2005, after a jury trial.
. A second branch of defendants' motion to strike, which was filed prior to the Fifth Superseding Indictment, argued that the death-penalty notices violated the Indictment Clause of the Fifth Amendment because, at the time of the motion, the factors had not been not found by the grand jury and alleged in any previous indictment. Upon the filing of the Fifth Superseding Indictment, this branch of the motion to strike was withdrawn; therefore, the Court need not address this issue.
. Mosley never submitted a mitigation memorandum.
. On March 29, 2006, Representative Louie Gohmert of Texas proposed the Death Penalty Reform Act of 2006, H.R. 5040, 109th Cong. (2006). The bill, which is now under consideration by the House Judiciary Committee's Subcommittee on Crime, Terrorism and Homeland Security, would, among other things, amend § 3593(a) to provide that
[t]he notice [of intent to seek the death penalty] must be filed a reasonable time before trial or before acceptance by the court of a plea of guilty. The court shall, where necessary to ensure adequate preparation time for the defense, grant a reasonable continuance of the trial.
H.R. 5040, § 4(1)(B) (emphasis added).
. The district court had scheduled the trial for September 10, but had “suggested that the postponements [of pre-trial hearings and conferences had] had the
practical
effect of can-celling the September 10 trial date."
Ferebe,
. Testifying in support of the proposed amendment to § 3593(a), see supra note 8, the head of DOJ’s Capital Crimes Unit stated that the amendment would legislatively overrule "the Ferebe rule[, which] could result in the dismissal of a death notice,” Hearing on H.R. 5040 Before the Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. of the Judiciary, 109th Cong. (2006) (statement of Margaret P. Griffey, Chief, Capital Crimes Unit, Criminal Div., Dep't of Justice), available at 2006 WLNR 5404524 (Mar. 31, 2006).
. McGriff's learned counsel advised the Court during the April 7th oral argument that Wilk is currently on appeal, and that the Eleventh Circuit heard oral argument last week.
. A plausible argument could also be made that the defendant should be retried before a non-death qualified jury, which would have the added virtue of allowing counsel’s focus and resources to be devoted exclusively to the underlying charges.
. The statistics are derived from raw data compiled by the Capital Defense Network ("CDN”). See CDN, Preparation Time Permitted Defense Counsel in Authorized Capital Prosecutions, http://www.capdef-net.org/fdprc/contents/shared — files/ docs/time.htm (last visited Apr. 11, 2006).
. Relying in part on Brown’s alleged marginal role in the Smith murder, and the Attorney General’s sudden withdrawal of the death notices against all of McGriff's codefen-dants, McGriff strenuously argues that the death notices were “shams” whose “true purpose was to buy time.” Defs.’ Supp. Joint Mem. of Law in Support of the Mot. to Dismiss the Notices of Intent to Seek the Death Penalty at 12-13. Although the Court is troubled by the Attorney General's indecisiveness in these matters of life and death, it cannot serve as a basis for striking McGriff's death-penalty notice.
See United States v. McVeigh,
. At oral argument, McGriff's learned counsel contended that his delay in submitting his mitigation statement was the result of his misunderstanding that the decision-making process would go forward with or without it. It is counterintuitive for learned counsel to suggest that he would not promptly avail himself of the opportunity afforded by a mitigation statement to further his efforts to persuade the U.S. Attorney to recommend not seeking the death penalty against his client.