Michigan death penalty policy can be mitigating factor under FDPA

In sentencing a convicted rapist/kidnapper/murderer, a federal jury should have been allowed to consider Michigan’s ban on capital punishment as a mitigating factor, the 6th U.S. Circuit Court of Appeals ruled.

In People v. Gabrion, the jury sentenced the defendant to death for his crimes. During the sentencing phase, the district court didn’t allow Michigan’s ban on the death penalty to be mentioned or admitted for the jury to consider as a mitigating factor in determining whether to sentence Gabrion to death or life in prison. Gabrion was tried in federal court because he committed the crime in the Manistee National Forest, a national park.

No other case had been decided on the issue of whether the state’s policy can be a mitigating factor under the Federal Death Penalty Act. In a decision written by Judge Gilbert Merritt Jr., the 6th Circuit said it can be.

Failing to consider the specific language of the statute allowing “any mitigating factor,” the court reasoned without further discussion that the Michigan policy did not fit within any of eight mitigating factors listed in the Federal Death Penalty.  This ruling is inconsistent with the language of the Act requiring the factfinder to  consider “any mitigating factor” and “any information relevant to a mitigating factor.”  18 U.S.C. § 3592(a); id. § 3593(c).

The statute includes a list of mitigating factors, but introduces the list by saying “any mitigating factors, including …”.

The question is whether the fact of the location of the body so close to a line that forbids the death penalty allows counsel to try to convince one or more jurors that imposing the death penalty in these circumstances would treat life or death in a random and arbitrary way based on chance.  The phrase “any mitigating factor” plainly includes information about Michigan’s policy against the death penalty and an argument based on the absence of proportionality in punishment when life or death is made to turn on chance and the lives of other equally guilty psychopaths are spared.  The case was not brought to serve a special national interest like treason or terrorism different from the normal state interest in punishing murder.  The jury should be given the opportunity to consider whether one or more of them would choose a life sentence rather than the death penalty when the same jury considering the same defendant’s proper punishment for the same crime but prosecuted in Michigan state court could not impose the death penalty.

The jury’s death sentence was vacated and the case was remanded back for retrial on sentencing.

Alice Batchelder dissented, arguing the majority’s decision goes too far in letting anything enter into the discussion as a mitigating factor.

The majority finds that the district court erred by “fail[ing] to consider the specific language of the statute allowing  ‘any mitigating factor,’” in the FDPA, §§ 3592(a) and 3593(c), and relies on United States v. Davis, 132 F. Supp. 2d 455 (E.D. La. 2001), for the proposition that the phrase “any mitigating factor” contains “no qualification or limitation,” and therefore the defendant is entitled to present or argue “any mitigating factor . . . period.”  Id. at 464. … The majority then defines mitigating factors as anything that “could conceivably make a juror question” the appropriateness of imposing the death penalty in a given case.  By this reading of “any” and “mitigating”, the majority concludes that “[t]he phrase ‘any mitigating factor’ plainly includes information about Michigan’s
policy against the death penalty.” …

The inflexibility of such an absolute proposition appears to render it limitless. After today, Michigan’s law against the death penalty is a mitigating factor.  But suppose Michigan had, not a law, but merely pending legislation to abolish the death penalty — must a court admit that as a mitigating factor?  What about a pending Supreme Court case or a campaign promise?  The Pope condemns the death penalty — is that a mitigating factor to be argued to the sentencing jury?  Read generously, this broad view of admissibility entitles a capital defendant’s counsel to present evidence or argument no matter how tenuous, tangential, or even speculative.  The only limit is counsel’s own creativity — or lack of creativity.  And if counsel may present such argument, no matter how ineffective or unappealing to jurors, will there come a day when we hold counsel ineffective for failing to do so.

Advertisements

6th Circuit: Go ahead, take another crack at this

In the vast majority of the United States federal district courts, plaintiffs suing under the Americans with Disabilities Act must show that their disability was a “motivating factor” for being fired from their jobs.

But the bar is set much higher in Michigan, Ohio, Tennessee and Kentucky. The Sixth Circuit has ruled in Monette v. Electronic Data Systems Corp., 90 F.3d 1173 (6th Cir. 1996), that a plaintiff’s disability must be the “sole reason.”

And that’s the reason, Judge Gilbert S. Merritt wrote in Lewis v. Humboldt Acquisition Corp., a federal district court in Tennesse correctly rejected an ADA plaintiff’s proposed jury instructions, which contained the more generous “motivating factor” language.

But in doing so, there was a clear invitation to Lewis’ attorney, Michael L. Weinman of Jackson, Tenn., to move for an en banc hearing.

One panel of the Sixth Circuit can’t overrule another, Gilbert explained, citing Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685 (6th Cir. 1985), and 6th Cir. R. 206(c).

Gilbert noted that Salmi had tied the hands of four other panels previously asked to overrule Monette’s “sole reason” standard. In a footnote, Gilbert explained how to get past that:

To avoid the inefficiency of appealing to a panel that could not grant her the remedy that she seeks, Lewis could have filed a petition requesting that her appeal initially be heard en banc, rather than by this panel. See Fed. R. App. P. 35. Although en banc hearings are “not favored,” they may be ordered when “the proceeding involves a question of exceptional importance.” Fed. R. App. P. 35(a)(2).

One such example is a case in which a panel decision “conflicts with the authoritative decisions of other United States Courts of Appeals that have addressed the issue.” Fed. R. App. P. 35(b)(1)(B). Of course, after this panel issues its opinion, Lewis may still move for rehearing en banc. See Fed. R. App. P. 40.

I asked Weinman if he was going to file the en banc motion.

“I sure am,” he said, adding that if that didn’t work in his favor, “this may be my shot at the Supreme Court.”

Weinman has tried the case twice. The first jury hung. The second deliberated “for several hours,” he said. Then, the jury sent out a note asking whether Lewis’ disability had to be the sole reason she was fired. The jury no-caused his client after getting the answer.

It’s a fairly safe bet the motion will be granted. Judge Richard Allen Griffin, concurring in Lewis, wrote:

[O]ur precedent on this issue of exceptional importance is misguided and contrary to the overwhelming authority of our sister circuits. Accordingly, the question appears appropriate for rehearing en banc. See Fed. R. App. P. 35(b)(1)(B).

We lifted the “sole reason” requirement from the Rehabilitation Act’s “solely by reason of her or his disability” language, see 29 U.S.C. § 794(a), and imported it into the ADA, reasoning in a footnote in Maddox v. University of Tennessee, 62 F.3d 843 (6th Cir. 1995), that “[t]he analysis of claims under the Americans with Disabilities Act
roughly parallels those brought under the Rehabilitation Act.” Monette, 90 F.3d at 1177- 78 (citing Maddox, 62 F.3d at 846 n.2).

As a super-majority of our sister circuits have held, however, the plain language of the ADA does not support application of the Rehabilitation Act’s “sole reason” standard.

The “super-majority” breaks down like this: there are 12 regional circuits; 10 have considered the issue; eight have adopted the “motivating factor” standard. The Sixth and Tenth Circuits use the “sole reason” standard.

We’ll keep an eye on this one.