A. Non-Statutory Aggravating Factors Should Be Charged in an Indictment under Apprendi, Ring and Blakely
The FDPA expressly requires the government to submit all aggravating factors to the unanimous review of a petit jury, but it does not oblige the government to have a grand jury include those factors in an indictment. [FN15] See 18 U.S.C. § 3593(b), (e). The statute only directs that the aggravating factors appear in a notice of intent to seek the death penalty, filed by the government before trial. See 18 U.S.C. § 3593(a).

Recent Supreme Court decisions--notably Apprendi, Ring, and Blakely--cast constitutional doubt on the mere provision of notice as an adequate alternative to grand jury screening. In Apprendi, the Supreme Court held that the Sixth Amendment requires that any fact increasing a penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.

*4 Blakely went further, holding that " 'an accusation which lacks any particular fact which the law makes essential to the punishment is ... no accusation within the requirements of the common law, and it is no accusation in reason." ' Blakely, 124 S.Ct. at 2536 (emphasis added) (quoting 1 J. Bishop, Criminal Procedure § 87 (2d ed. 1872)). Accordingly, the Supreme Court read Apprendi as giving "every defendant ... the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment." Id. at 2543.

In Ring, the Supreme Court applied Apprendi to the death penalty and, in effect, to a sentencing jury context. It held that an aggravating factor under Arizona's death penalty statute must be proven to a jury beyond a reasonable doubt before it can be used by a judge to impose the death penalty. The decision's rationale readily extends beyond factors that make a defendant death-eligible, embracing all aggravating factors that may be weighed by a capital jury in its final sentencing decision.

Significantly, none of these cases distinguishes between the Sixth Amendment petit jury requirement, and the Fifth Amendment Indictment Clause, suggesting instead that they are both components of a two-tiered process of procedural protections. [FN16] Facts "essential" to punishment must therefore be screened by a grand jury prior to their submission before a petit jury. Accordingly, an aggravating factor (even non-statutory) must be found by a grand jury before it can be used by the government to justify a death sentence.


1. Blakely Applied to the FDPA
a. Non-Statutory Aggravating Factors Are "Legally Essential" to Punishment
While the meaning of "legally essential" (to punishment) is clear in relation to the facts of Blakely, it is more ambiguous in the context of the FDPA. Under the framework in Blakely, much like in Apprendi, one aggravating factor--if found by the decision-maker--led linearly to a higher sentence and was therefore "legally essential" (i.e., if the fact-finder found x intent or y drug quantity, the finding led to z sentence). [FN17] By inference, since the FDPA makes punishment contingent on a balancing process, all of the factors to be weighed by the decision-maker should constitute what is "legally essential" to a defendant's punishment. [FN18] As Apprendi instructed, "... the relevant inquiry is one not of form, but of effect--does the required finding expose the defendant to a greater punishment than that authorized by the jury's guilty verdict?" [FN19] Apprendi, 530 U .S. at 494. Under the unique FDPA scheme, the non-statutory aggravators at issue are among a set of factors that together expose Green and Morris to a greater punishment than that authorized by the jury's guilty verdict alone.

The government argues that non-statutory factors are not "essential" to the punishment of death because the jury may sentence a defendant to death once the government has satisfied the first two threshold burdens for establishing death-eligibility. This argument has been adopted by numerous courts interpreting Apprendi prior to Blakely. See infra Parts II.A.1.b., II.B. It assumes that, since non-statutory aggravating factors alone cannot raise the statutory maximum penalty, they are merely sentencing factors, which, unlike elements of the offense, do not have to be charged in an indictment or tried before a jury.

*5 Today, such an argument ignores the nature of the FDPA, as well as subsequent case law. Prior to Apprendi, Ring, and Blakely, and in the non-capital arena, one could say the following with confidence: Elements of an offense had to be screened by a grand jury before presentation to a petit jury. If the grand jury found probable cause to believe that the elements were present, the petit jury was obliged to decide guilt or innocence. And, if the defendant was convicted, the judge would sentence him. There were--or appeared to be--clear differences between offense facts (that went before grand and petit juries) and sentencing factors (that went before judges). See Judge Nancy Gertner, Circumventing Juries, Undermining Justice: Lessons from Criminal Trials and Sentencing, 32 Suffolk U.L.Rev. 419, 429-32 (1999).
But a death penalty case is not amenable to such a construct. The FDPA makes the death penalty jury a sentencing jury, not only conducting fact-finding, as any jury does, but also weighing aggravating and mitigating facts for the purpose of determining punishment, as judges typically do. The penalty jury's unique role muddies the distinction between offense facts, traditionally screened by grand juries, and sentencing facts, which traditionally went unscreened.

The trilogy of Apprendi, Ring, and Blakely further conflates the line between sentencing facts and offense facts. Blakely explicitly rejected methodical distinctions between formal offense elements and sentencing factors, holding that all facts "essential" to punishment must be treated to the formalities of grand jury presentment and a jury trial. The Supreme Court specifically deemed it an "absurd result" that "the jury need only find whatever facts the legislature chooses to label elements of the crime, and that those it labels sentencing factors--no matter how much they may increase the punishment--may be found by the judge." Blakely, 124 S.Ct. at 2539. Even the government agrees that certain "sentencing facts"--here the listed statutory aggravating factor--must be screened by a grand jury.

Moreover, once a defendant is deemed death-eligible, the FDPA requires that the penalty jury impose the death penalty only if the aggravating factors "sufficiently outweigh" the mitigating factor or factors. 18 U.S.C. § 3593(e). This burden is not optional. Even if the defendant presents no mitigating factors, to return a sentence of death after the first two death-eligibility burdens have been met, the jury must find that the aggravating factors "alone are sufficient to justify a sentence of death." Id. Because we will never know exactly how each factor influences the jurors' ultimate punishment determination, logic dictates that all aggravating factors-- together--be considered legally essential to the punishment. Indeed, the government's argument that non-statutory factors are not essential is disingenuous; if the government does not require additional evidence to convince the jury to vote for death, why is it invoking non-statutory factors at all?

*6 Accordingly, any aggravating factor is "legally essential to punishment" because, while not linearly triggering a higher sentence within the statutory maximum, as Federal Sentencing Guidelines factors do, it may effectively tip the scale from life to death in combination with the other factors at play.


b. Applying Blakely to the FDPA Is Consistent with the Outcome in Ring
The Supreme Court in Ring held that an aggravating factor under Arizona's death penalty statute must be proven to a jury beyond a reasonable doubt. On remand, the Arizona Supreme Court interpreted Ring to require that not just one, but all aggravating factors urged by the government be heard by a jury. The same rationale should require that a grand jury find more than the one statutory aggravating factor necessary for death-eligibility.

Under the Arizona death penalty statute at issue in Ring, not unlike the FDPA, a defendant found guilty of first-degree murder could only receive a sentence of death if a judge determined the presence of at least one aggravating circumstance from a list of enumerated circumstances and found that it outweighed any mitigating circumstances. See Ring, 536 U.S. at 592. This balancing scheme functions much like that of the FDPA, except that it does not involve non-statutory aggravating factors. Thus, the scheme in Ring proves a useful analog to the FDPA.

Ring's sentencing judge determined that he was subject to two aggravating factors--commission of the offense in expectation of pecuniary gain, and commission of the offense in an especially heinous, cruel or depraved manner. See id. at 594-595. However, the Arizona Supreme Court found insufficient evidence to support the aggravating circumstance of depravity, so the United States Supreme Court ultimately considered a death sentence based on the existence of a single aggravating factor. See id. at 596.

Though considering only one factor, the United States Supreme Court did not expressly limit its holding to require that a jury find only one aggravating factor. In concluding that, "[b]ecause Arizona's enumerated aggravating factors operate as 'the functional equivalent of an element of a greater offense,' ... the Sixth Amendment requires that they be found by a jury," the Supreme Court wrote in the plural. [FN20] Id. at 609.

Additionally, the Court opined, "[c]apital defendants, no less than non-capital defendants, ... are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment." Id. at 589. It is far from clear that the Court interpreted the Arizona statute to condition a sentence of death on the one aggravating factor that makes a defendant eligible for such a sentence, when multiple factors may be balanced to determine punishment. [FN21]

In fact, the Arizona Supreme Court found that Ring did not focus single-mindedly on death-eligibility. When hearing the case on remand from the United States Supreme Court, the highest court of Arizona held that the government is required to try all statutory aggravating factors that it puts forth, in recognition of the structure of the statute. The Court wrote:

State v. Ring, 204 Ariz. 534, 561-62, 65 P.3d 915 (2003). [FN22]

The FDPA already complies with Ring's holding in the sense that it requires a jury to find both statutory and non-statutory aggravating factors. See supra Part I. Although Ring does not address the Fifth Amendment, other Supreme Court and circuit court opinions have paired Fifth and Sixth Amendment protections. See supra note 16; infra note 26; infra Part II.B. And, as Ring and some state courts following it have suggested, these procedural protections apply to more than one aggravating factor when the government presents multiple aggravating factors.
Logic dictates the same conclusion. In essence, Morris' alleged murder of Caddell (or Green's alleged attempted murder of Vaughan) would be part of the jury's sentencing equation, much like the statutory aggravator, grave risk of death to additional persons. Thus, it would be nonsensical to require grand jury screening of one factor, but not the other.


2. Prior Unadjudicated Crimes, in Particular, Require Procedural Protections
Grand jury screening is particularly indispensable where the factor at issue is a prior unadjudicated crime. Prior unadjudicated crimes take on special meaning under the Fifth Amendment and Supreme Court precedent. The principle that a defendant faced with the allegation of a prior unadjudicated crime must receive the protection of grand jury screening under the Fifth Amendment can be gleaned from Supreme Court decisions addressing prior convictions.

In Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the Supreme Court considered a federal grand jury indictment charging the defendant with presence in the United States post-deportation--an offense carrying a statutory maximum sentence of two years. The defendant pled guilty and admitted, at his plea hearing, that he had originally been deported pursuant to three earlier felony convictions. The government then argued that, because of the defendant's recidivism, he should be sentenced under a different part of the statute, carrying a sentence of up to twenty years. The defendant objected to a sentence greater than two years in length because the indictment did not mention his earlier convictions.

*8 The Supreme Court rejected Almendarez-Torres's argument under the theory that he had "admitted the three earlier convictions for aggravated felonies-- all of which had been entered pursuant to proceedings with substantial procedural safeguards of their own ...." Apprendi, 530 U.S. at 488. Employing this reasoning--the assurance of accuracy and due process in light of prior adjudication as to the merits of criminal accusations--Apprendi and its progeny explicitly exempted prior convictions from the indictment and jury trial requirements. See id. at 476 (" 'any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt" ') (quoting Jones v. United States, 526 U.S. 227, 243 n. 6, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)). Similarly, since non-statutory factors like remorse and victim impact are inextricably linked with the charged offense (and, thereby, with the procedural protections that attend the case-in-chief), arguably, Morris and Green would not be deprived of due process if they were sentenced on these bases without additional grand jury screening.

But surely it cannot be said that a prior unadjudicated crime, entirely separate from the charged offense, comes with the substantial procedural safeguards accompanying a prior conviction, or factors intertwined with the trial of the charged offense. Indeed, in Shepard v. United States, --- U.S. ----, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), the Supreme Court found that even prior convictions, if improperly substantiated, cannot be used to increase punishment. The Court held that a sentencing court could only rely on prior convictions to enhance a defendant's sentence under the Armed Career Criminal Act if the statutorily required characteristics of those convictions were evidenced by "the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or [ ] some comparable judicial record of this information." Id. at 1263. The Court foreclosed a broader evidentiary inquiry that would allow a sentencing court to conduct its own review of the record to ascertain the applicability of prior convictions because this would "raise[ ] the concern underlying Jones and Apprendi: the Sixth and Fifth Amendments guarantee a jury standing between a defendant and the power of the state, and they guarantee a jury's finding of any disputed fact essential to increase the ceiling of a potential sentence." Id. at 1262.

Thus, even in Shepard, where the disputed fact could "be described as a fact about a prior conviction[,]" the Supreme Court deemed it "too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and Apprendi to say that Almendarez-Torres clearly authorizes a judge to resolve the dispute." Id.

*9 In this light, the Indictment Clause cannot be compromised under the assumption that the sentencing phase of the jury trial will provide defendants with the requisite procedural protection; the grand jury function can neither be ignored nor supplanted by other procedures of the government's choosing. [FN23] Despite taking the government's position on non-statutory aggravating factors before Blakely, see infra Part II.B., the Eighth Circuit called the Fifth Amendment's Indictment Clause "... the first of a constitutionally-mandated two-tiered check [indictment and jury trial] on prosecutorial power--a protection which reaches paramount importance in a capital case." United States v. Allen, 357 F.3d 745, 756 (8th Cir.2004); see also Harris, 536 U.S. at 564 ("The grand and petit juries thus form a strong and two-fold barrier ... between the liberties of the people and the prerogative of the [government].") (citations omitted). The Allen Court also rejected the contention that the grand jury is a mere formality that rarely refuses a prosecutor's requested charge, characterizing the contention as "speculative reasoning ... [that] disregards the constitutional framework that, for felonies and capital crimes, places two separate bodies of citizens between the accused and a state-sanctioned judgment." Allen, 357 F.3d at 757.

A two-tiered model of procedural protections is particularly critical to achieving fairness in the FDPA context. Under a non-capital sentencing scheme, like the one at issue in Apprendi or Blakely, the Supreme Court has held that the petit jury must serve as a screen for judges on facts essential to punishment. Under the FDPA, the penalty jury essentially serves the function of both petit jury and judge, screening all facts for itself. Accordingly, without grand jury screening of unadjudicated crimes, the capital process is reduced from the two-tiered screening process suggested by Blakely (grand jury and petit jury screening for judge) to a process without any tiers at all (capital jury screening unadjudicated crimes for itself).

If our goal is a two-tiered system of procedural protections, then it is hard to imagine what could be more "legally essential" than ensuring that the unadjudicated prior crimes invoked against Morris and Green--allegations that may, in the end, tip the scale from life to death--be charged in their indictments. [FN24]

B. Existing Circuit Court Law on Aggravating Factors and the Indictment Clause
Three circuits, all issuing opinions pre-Blakely, have disagreed with this Court's reasoning, concluding that only one statutory aggravating factor--the bare minimum necessary to qualify a particular defendant for a sentence of death under the FDPA--must be alleged in the indictment. They held that additional statutory and non-statutory factors need not be so alleged, even if the government relies on them in seeking the death penalty. [FN25] See United States v. Higgs, 353 F.3d 281 (4th Cir.2003); United States v. Robinson, 367 F.3d 278 (5th Cir.2004); Allen, 357 F.3d 745 (8th Cir.2004), rev'd en banc, 406 F.3d 940 (8th Cir.2005).

*10 In Robinson, a decision representative of all three circuit opinions, the defendant challenged his conviction and death sentence under the Fifth Amendment, arguing that the indictment failed to charge the statutory aggravating factors that rendered him eligible for the death penalty. See 367 F.3d at 281. The Robinson Court construed Ring 's holding as hinging on death-eligibility: "where an aggravating factor renders a defendant eligible for death, it is 'the functional equivalent of an element of a greater offense' and therefore must be proven to a jury beyond a reasonable doubt." Id. at 284 (emphasis added). Accordingly, the court held that "the government is [only] required to charge, by indictment, the statutory aggravating factors it intends to prove to render a defendant eligible for the death penalty, and its failure to do so ... is constitutional error." Id. (emphasis added); see also Allen, 357 F.3d at 748; Higgs, 353 F.3d at 298.

Under the circuit courts' holdings, prior unadjudicated crimes--non-statutory aggravators under the FDPA--would be presented to the sentencing jury without the protective screening of a grand jury indictment because they are not a prerequisite to death-eligibility and therefore do not elevate the available statutory maximum sentence from life imprisonment to death. As discussed supra, this outcome is irreconcilable with the Fifth Amendment, Blakely, and even Ring.

In fact, the Fifth Circuit in Robinson at once downplayed and affirmed the role of the grand jury. Despite its holding's inconsistency with the principles of the Fifth Amendment, the court invoked Supreme Court precedent to assert the two essential functions of the indictment process: 1) notice to the defendant of the charge so that s/he may prepare a defense; and 2) "interpos[ing] the public into the charging decision such that a defendant is not subject to jeopardy for a crime alleged only by the prosecution." Robinson, 367 F.3d at 287.

While, under the FDPA, the government can fulfill its notice obligation apart from the indictment, the indictment itself is the only means by which the public serves as a pre-trial buffer between the prosecutor and the defendant. [FN26] Since such protection cannot be provided once a trial has already begun, Robinson recognized that "meaningful enforcement of this right always will depend, in the main, on the vigilance of the trial court and on its willingness to require that a defective indictment be amended before trial." Id. at 287. Thus, the Fifth Circuit's acknowledgment of the grand jury's important function is difficult to reconcile with its conclusion that the trial court's vigilance need only apply to the one statutory aggravator qualifying a defendant for death under the FDPA, while potentially more weighty aggravators slip by the grand jury and nonetheless appear before a sentencing jury.

Notably, each of the three circuit court decisions were issued before the Supreme Court decided Blakely. The Higgs Court, for example, argued that non-statutory aggravators relied upon by the government at trial need not be included in the indictment because "the purpose of non-statutory aggravators is to aid the factfinder in selecting the appropriate sentence from the available options." Higgs, 353 F.3d at 298. As discussed supra, Blakely explicitly rejected such formalistic distinctions between elements of a crime and sentencing factors. An emphasis on effect over form reinforces the idea that death-eligibility should not be the sole factor in determining what is to go before the grand jury under the FDPA. Where defendants may be subject to death on the basis of prior unadjudicated crimes, surely such formalism finds even less room.

Annual Habeas Corpus Training for Capital Defense Attorneys
By: The Association of the Bar of the City of New York
Time: 9:00 AM - 2:30 PM CLE Credit
Location: House of the Association , 42 West 44th Street
City: New York, NY
Contact: Julia Tarver at jtarver@paulweiss.com 212-373-3029
Description:

This program is for defense attorneys who now have or are considering taking a death penalty case.  The program will feature a review of recent relevant Supreme Court decisions, presentations on cutting edge international law and mental health issues, a lunch-time discussion of ethical issues, and information about habeas corpus and the Anti-Terrorism and Effective Death Penalty Act.  There will be simultaneous separate sessions on habeas corpus with one session for attorneys new to capital defense work and one session for more experienced attorneys.

The sessions will be followed by a free lunch that will give pro bono attorneys the opportunity to network with attorneys handling capital cases in the same states.
Pre-registration is strongly encouraged. Please send your name, place of employment, address,contact information, and bar membership information to jtarver@paulweiss.com. If you have any questions, please contact: Karl Keys at 973 977-4150. CLE credits (including Ethics CLE credits) available.

Annual Habeas Training Schedule July 7, 2005

8:45 - 9:15 Registration

Plenary Sessions
9:15 - 9:20 a.m. Introduction (Prof. Jeff Kirchmeier)

9:20 - 10:10 a.m. Litigate Locally, But Think Globally: International Law Issues In the Domestic Death Penalty Context (Joshua Dratel)

10:10 - 10:20 a.m. Break

10:20 - 11:10 a.m. Supreme Court Review (Christina Swarns).

11:10 - 11:20 Break

11:20 - 12:10 Mitigation and Mental Health Issues in Capital Cases (Prof. Charles Lanier and Ron Tabak)

12:10 - 12:20 Break

Alternate Sessions
12:20 - 1:10 p.m. Session A: Developments Regarding Habeas Corpus and the Anti-Terrorism and
Effective Death Penalty Act (Prof. Eric Freedman).

Session B: An Introduction to Habeas Corpus and the AntiTerrorism and Effective Death Penalty Act for New Capital Defense Attorneys

Plenary Sessions

1:10 - 2:30 p.m. Lunch at the House of the Association: An opportunity to network with other capital defense attorneys, learn how to obtain a capital case, or meet with other pro bono capital defense attorneys who handle cases in the same state as you.

1:45 - 2:15 p.m. Professional Responsibility and the Capital Defense Lawyer (Joseph Krakora) [this session will include 0.5 Ethics CLE].

Sentencing Law & Policy Notes

Together, Apprendi, Ring, and Blakely abandoned the Court's previous focus on the procedural protections required when a defendant is exposed to punishment above the statutory maximum.  They emphasized the protections that must be accorded more generally to facts, including those factors traditionally characterized as sentencing factors, that are essential to punishment because they increase a defendant’s punishment even within a statutory sentencing range. Plainly, prior unadjudicated crimes that the government offers to justify the imposition of the ultimate punishment fit within this category of essential factors.

Although defendants urge the Court to treat all nonstatutory aggravating factors alike and require that everything be screened, my ruling is a narrow one, limited to prior unadjudicated crimes.  The other non-statutory factors here (lack of remorse and victim impact), like certain of the listed statutory aggravators, are factors tied to the charged offense.  They do not raise the same constitutional concerns as prior unadjudicated accusations of crime apparently unrelated to the offense and uniquely prejudicial.

Talk Left writes:

CrimProf Blog writes:

Trinidad and Tobago's AG Threatens to Hang Every Convict on Death Row If Courts Interfere With His Capital Punishment Plan
The Express reports that John Jeremie, the AG of Trindad and Tobago, told Parliament this week that he will resume hanging convicts on death row as soon as they exhaust their appeals.  Jeremie said the hangings are necessary to fight the recent upswing in crime. "The Government recognises that our people have grown tired of plans, talk and discussions of the problems...today the Government states in forthright and unambiguous terms that we are at war with each and every criminal in Trinidad and Tobago," said Jeremie.  Jeremie also stated that if the courts intervene, the AG's office will do everything in its power to hang every person on death row.  [Mark Godsey]

Michigan Law's Death Penalty Defense College
From a press release:  "Discussions about the use of the death penalty in this country elicit varying but always strong opinions. One thing for certain -- if you ever are accused of a capital offense, you want an attorney who knows what he or she is doing.  In late May, the University of Michigan Law School hosted its sixth Clarence Darrow Death Penalty Defense College, which is designed to help defense attorneys hone their skills through hands-on workshops that focus on the attorneys' current death penalty cases.  According to the college’s founder and director, Andrea Lyon, the college is "not about innocence. It’s about saving people’s lives." And the program has been successful in that goal. Since 2000 when the college was started, attorneys have brought more than 120 capital cases to the college. Lyon knows of only one case among the 120 that did not result in a plea bargain or life instead of a death sentence. That one exception was a case in which the defendant dismissed his attorney and asked to be executed.  Lyon, who is currently an associate professor at DePaul University College of Law, began the program at the University of Michigan while she was on the clinical faculty here. At DePaul, Lyon also directs the Center for Justice in Capital Cases and supervises that law school’s Death Penalty Legal Clinic. Next year the college will be hosted by DePaul, although the U-M Law School will continue its sponsorship along with the American Bar Association, the National Association of Criminal Defense Lawyers, and the Office of the State Appellate Defender of Illinois.  "I’m very grateful to the University of Michigan Law School for housing it, sponsoring it, and supporting it," Lyon says. "It’s very important work. It could not have been done without the support of U-M Law School."  More . . .  (pictured:  CrimProf Andrea Lyon) [Mark Godsey]


New Death Penalty Info
Here are some recent stories on the DPIC website:

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