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Case 1:11-cr-00115-LO Document 68

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINA Alexandria Division UNITED STATES OF AMERICA v. JORGE AVILA TORREZ, Defendant. ) ) ) ) ) ) ) )

Criminal No.: 1:11-cr-115 The Hon. Liam OGrady Hearing: June 1, 2012

MOTION TO TRIFURCATE JURY DELIBERATIONS NOW COMES Jorge Avila Torrez, by and through undersigned counsel, and pursuant to 18 U.S.C. 3593(c), and the Fifth, Sixth, and Eighth Amendments, respectfully requests that this Court enter an order trifurcating the jurys consideration of this case. 1 In support of this Motion, Defendant states the following. INTRODUCTION Following a practice that took hold after the Supreme Court approved bifurcated proceedings in Gregg v. Georgia, 428 U.S. 153 (1976) (plurality opinion), federal death penalty cases generally proceeded with bifurcated jury deliberations. The FDPA contemplates such bifurcation in 18 U.S.C. 3593(b). In the first phase of a bifurcated proceeding, jurors deliberate on whether the Government has proven the offense[s] charged in the indictment beyond a reasonable doubt. This is commonly known as the guilt/innocence phase. In the second phase, the jurors deliberate on the mental state

This motion assumes that the Court has found the FDPA facially constitutional, and that the Court may adopt procedures not set forth in the statute to accommodate the requirements of Ring v. Arizona, 584 U.S. 584 (2002), see Motion to Declare the Federal Death Penalty Act Unconstitutional. By seeking alternative relief, Mr. Torrez does not concede the FDPAs constitutionality or speak to the Courts ability to impose additional requirements.

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factors set forth at 18 U.S.C. 3591(a)(2), the statutory aggravating factors, the nonstatutory aggravating factors, and the mitigating factors. If the jury finds a mental state and one statutory aggravating factor[s], then it weighs the various factors to determine if the penalty should be death, life without the possibility of release, or some other sentence. This second phase is commonly referred to as the penalty phase. The Federal Rules of Evidence do not apply at the penalty phase. Instead, 18 U.S.C. 3593(c) permits the parties to present relevant information. Such information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury. Id. The Supreme Court's decision in Ring v. Arizona, 536 U.S. 584 (2002), raises serious questions about the constitutionality of conducting a unitary sentencing hearing where the jury makes its eligibility decision (which under Ring should now have all the trappings of a guilt/innocence trial), and its selection decision in a single deliberative process. To the extent that FDPA's single sentencing hearing provisions survive constitutional challenge under Ring, the Court should nonetheless structure the jurys deliberations so as to avoid the myriad problems associated with admitting information on one issue, such as a nonstatutory aggravating factor like victim impact, that is not relevant on another issue, such as a statutory aggravating factor related to the circumstances of the offense. Numerous courts have ordered trifurcated proceedings for these reasons. See, e.g., United States v. Moussaoui, 591 F.3d 263, 301 (4th Cir 2010) (discussing bifurcation of penalty phase following guilty plea into threshold eligibility and death selection phases); United States v. Hager, 530 F.Supp.2d 778, 781 (E.D.Va. 2008) (noting

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trifurcation of trial phases); see also United States v. Natson, 444 F.Supp.2d 1296, 1309 (M.D. Ga. 2006) United States v. Johnson, 362 F.Supp.2d 1043 (N.D. Iowa 2005). In the first phase of a trifurcated proceeding, the merits phase, the jury deliberates on the defendants guilt or innocence of the charged offenses. In the second phase, the eligibility phase, the jury determines whether the Government has proven the mental state factors and the statutory aggravating factors beyond a reasonable doubt. In the third phase, the penalty or selection phase, the jury decides on the nonstatutory aggravating factors and the mitigating factors, undertakes the process of weighing, and determines the sentence. I. TO BE CONSTITUTIONAL UNDER RING V. ARIZONA, PROCEEDINGS UNDER THE FEDERAL DEATH PENALTY ACT MUST NOW BE TRIFURCATED. It is now clear that statutory aggravating factors and the intent requirements of 18 U.S.C. 3592 are elements of a charged capital offense because those factors serve to raise the lawful maximum penalty from life imprisonment to death. Ring v. Arizona, 536 U.S. 584, 589 (2002); see also United States v. Allen, 406 F.3d 940, 943 (8th Cir. 2005); United States v. Robinson, 367 F.3d 278, 284 (5th Cir. 2004); United States v. Higgs, 353 F.3d 281, 299 (4th Cir. 2003); United States v. Quinones, 313 F.3d 49, 53 n.1 (2d Cir. 2002). In light of Ring, and to properly meet the requirements of the Fifth, Sixth and Eighth Amendments, proceedings under the FDPA must now be trifurcated. Absent a trifurcated capital proceeding under the FDPA, a defendant is forced to have a jury decide whether the Government has proven the remaining elements of a capital offense, i.e., the defendants eligibility for the death penalty, at the same proceeding where the jury ultimately decides whether to in fact impose such a

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punishment. By allowing the jurys determination regarding death eligibility under the FDPA to be potentially tainted by evidence that relates to nonstatutory aggravating factors and the process of weighing the aggravating and mitigating factors, the FDPA commingles two fundamentally different decisions which, under Ring and the Constitution, must be kept separate: (1) whether the Government has proven all elements of a capital offense beyond a reasonable doubt; and (2) if so, whether death or life without the possibility of release is the appropriate sentence. As Ring held, a jurys decision regarding the presence of a statutory aggravating factor and the presence of the requisite mental state each involve a determination as to an essential element of the charged capital offense. Such determinations must be made in a proceeding that occurs after the trial on guilt/innocence, but before, and separate from the proceeding where the jury ultimately decides whether to impose the death sentence. Any less of a procedure violates the defendants Fifth Amendment right to enter the eligibility phase cloaked in the presumption that they are innocent of the death penalty a difficult presumption to maintain in the context of a capital case. 2 It also violates the defendant's rights to procedural due process under the Fifth Amendment and his rights to trial by jury and confrontation under the Sixth Amendment. The presumption of innocence is a basic tenet of American law, Estelle v. Williams, 425 U.S. 501, 503 (1976), which "lies at the foundation of the administration of our criminal law."
2

See Jesse Nason, Mandatory Voir Questions in Capital Cases: A Potential Solution to the Biases of Death Qualification, 10 Roger Williams U. L. Rev 211, 219 (2004) (summarizing research on how death-qualified jurors may presume guilt, resolve ambiguities against the defendant, more readily accept the governments version of the events, distrust defense witnesses, fill evidentiary gaps with their beliefs that defendant committed the crime, and were more likely to infer premeditation). See also United States v. Green, 324 F.Supp.2d 311, 329 (D.Mass 2004) (citing studies that raise problem with whether death-qualified juries are more conviction prone). 4

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Coffin v. United States, 156 U.S. 432, 453 (1895); accord In re Winship, 397 U.S. 358 (1976). Under the presumption of innocence, a defendant is presumed innocent until the prosecution proves all elements of the offense beyond a reasonable doubt. A wide variety of procedures are designed to protect the presumption of innocence, hold the Government to its burden of proof, and otherwise ensure a fair trial. Chief among these are procedures governing the admissibility of evidence. Testimony, exhibits, and other evidence not relevant to an element of the offense is inadmissible. Now that eligibility factors are functional equivalents of an element of the offense, Ring, 536 U.S. at 609, the court and the jury presume the defendant innocent of those elements unless the Government has proven them to the jury beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466 (2000) (state must prove very element that distinguishes lesser from greater crime). A unitary capital sentencing proceeding, however, does not afford the kinds of procedural protections designed to protect the presumption of innocence. In a unitary sentencing proceeding, the jury is permitted to hear a wide variety of information on matters not relevant to the mental state and statutory aggravating factors (the elements), such as victim impact, an unrelated, uncharged murder, and a host of other information about the nature and circumstances of the offense and the defendant. Such information would rarely, if ever, be admissible in a trial-like proceeding designed to afford the defendant the full panoply of procedural protections commonly associated with the Fifth and Sixth Amendments. See Williams v. New York, 337 U.S. 241, 246 (1949) ("[t]ribunals passing on the guilt of a defendant have been hedged in by strict evidentiary procedural limitations"); Huddleston v. United States, 485 U.S. 681, 686 (1988) (extrinsic acts generally inadmissible unless relevant to motive,

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opportunity, or knowledge); Old Chief v. United States, 519 U.S. 172, 181 (1997) (recognizing how prior convictions can taint fairness of proceeding); Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause of Sixth Amendment prohibits admission of testimonial statements not subject to cross-examination); Sandstrom v. Montana, 442 U.S. 510, 515 (1979) (holding unconstitutional instruction that law presumes ordinary consequences of defendant's voluntary acts). For these reasons, the single sentencing hearing provision of the FDPA is at odds with Ring. The Supreme Court clearly stated in Ring that a defendant holds a Sixth Amendment right to have the Government prove death "eligibility" factors to the jury beyond a reasonable doubt. 536 U.S. at 609. The Court surely did not mean to provide such a right, but then deprive a defendant of all the procedural protections commonly associated with it, including the presumption of innocence and a host of other procedural protections designed to guarantee a fair and just trial. II. TO AVOID THE DANGERS OF UNFAIR PREJUDICE, CONFUSION OF THE ISSUES, AND MISLEADING THE JURY, THE PROCEEDINGS SHOULD BE TRIFURCATED. Even if the single sentencing hearing provisions of the FDPA do not collide with Ring and Fifth Amendment procedural protections, the sentencing proceedings should nonetheless be trifurcated. The court in United States v. Johnson, 362 F.Supp.2d 1043 (N.D. Iowa 2005), found authority for trifurcating the proceedings in the provisions of the FDPA governing the admissibility of information. 3 The court concluded that

The Court in Johnson construed the provisions if 21 U.S.C. 848 a statute that formerly set out penalty procedures for murders committed as part of a continuing criminal enterprise. The statutes provisions on the admissibility of information are similar to the FDPAs the only difference being that before the Court may exclude information under the CCE statute, it must find that the probative value of the 6

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information relevant to the nonstatutory aggravating factors should be excluded from the jurys consideration of the mental state and statutory aggravating factors because the probative value of the information was substantially outweighed by the danger of unfair prejudice, confusing the issues and misleading the jury. The courts analysis in Johnson applies here. Consideration of the alleged nonstatutory factors in this case necessarily would prejudice the jury in evaluating the existence of the defendants mental state and the existence of statutory aggravating factors. The Government has alleged in the Notice of Special Findings section of the indictment all four of the mental states set forth at 18 U.S.C. 3591. The Government also alleges two statutory aggravating factors: (1) that Mr. Torrez has previously been convicted of an offense punishable by a term of imprisonment of more than one year, involving the use or attempted use or threatened use of a firearm against another person (18 U.S.C. 3592(c)(2)) and (2) Mr. Torrez has previously been convicted of two or more State offenses punishable by a term of imprisonment of more than one year committed on different occasions, involving the infliction of, or attempted infliction of serious bodily injury or death upon another person (18 U.S.C. 3592(c)(4)).4 The nonstatutory factors, to the extent they are not duplicative of the statutory factors, consist of non-adjudicated conduct that is plainly irrelevant to the mental state and aggravating factors (eligibility issues) and should be excluded

information substantially outweighs its prejudicial effect. The FDPA, in contrast, omits the phrase substantially, thereby giving the Court a broader basis to exclude information during the sentencing hearing. 4 Mr. Torrez does not concede that any of the statutory or nonstatutory factors are appropriate for submission to the jury. 7

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from the jurys consideration on those issues on the grounds of unfair prejudice, confusion of the issues, and misleading the jury. As to unfair prejudice, victim impact information and information about other alleged murders will have an undue tendency to cause a decision on the mental state and statutory aggravating factors on an improper basis. See Johnson, 362 F.Supp.2d at 1106. In fact, such evidence can have unsurpassed emotional power on a jury even when limited in scope, amount, and length. As Judge Bennett observed in Johnson: To pretend that such evidence is not potentially unfairly prejudicial on issues to which it has little or no probative value is simply not realistic, even if the court were to give a careful limiting instruction. Rather, such potent, emotional evidence is a quintessential example of information likely to cause a jury to make a determination on an unrelated issue on the improper basis of inflamed emotion and bias sympathetic or antipathetic, depending on whether one is considering the defendant or the victims families Therefore, as a general matter and certainly in this case the danger of unfair prejudice arising from hearing victim impact evidence or evidence on other nonstatutory aggravating factors before the jury makes its determination on the defendants eligibility for the death penalty, on the basis of the gateway [mental state] and statutory aggravating factors, substantially outweighs any probative value of such evidence to the determination of the defendant eligibility for a death sentence. Id.at 111 (and authorities cited therein). Having the jury decide the mental state and statutory aggravating factors before hearing victim impact evidence and evidence of other crimes will at least keep such evidence from infecting the jury's deliberations on whether the Government has met its burden of proving the "eligibility" factors. The need to avoid confusion of the issues under 18 U.S.C. 3593 provides an additional grounds to trifurcate the proceedings and exclude from the jury's decision on "eligibility" factors any information on nonstatutory aggravating factors and mitigating factors. By excluding extraneous information, the Court can help the jury focus its 8

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attention on the Government's proof of the statutory aggravating factors rather than have to worry about the jury using information improperly. Lastly, trifurcated proceedings will reduce the likelihood of the jury being misled by the multiple issues it must face in a capital case. See 18 U.S.C. 3583 (danger of misleading the jury is grounds to exclude evidence). As Judge Bennet wrote in Johnson: If the jury is permitted to hear information on all of the factors in one proceeding, the jury is reasonably likely to be misled into believing that all information is pertinent to the determination of all factors and the balance of factors, when the process under [the statute] is actually sequential and cumulative. The jury must first find the defendant guilty; then must find one [mental state]; then must find at least one "statutory" aggravating factor; then may find one or more "nonstatutory" aggravating factors and one or more mitigating factors; then must balance all of the factors to determine the appropriate penalty. 362 F.Supp.2d at 1109. Findings from the Capital Jury Project lend further support to the conclusion that trifurcated proceedings may help lessen juror confusion about capital sentencing and increase juror comprehension of instructions. Those findings reveal, among other things, grave problems with (1) jurors thinking that death is required upon proof of certain aggravating factors; and (2) jurors generally misunderstanding the complex instructions in a capital case. See generally William J. Bowers and Wanda D. Foglia, Still Singularly Agonizing: Law's Failure to Purge Arbitrariness from Capital Sentencing, 39 Criminal Law Bulletin 51, 63 (2003) (forty four percent of capital jurors believed that death required when offense was heinous, vile, or depraved; only thirty percent of jurors understood that aggravation had to be proven beyond a reasonable doubt; and fifty percent erroneously believed that mitigation had to be proven beyond a reasonable doubt).

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A trifurcated proceeding may help alleviate some of these problems. First, a trifurcated proceeding, where the jury in the second phase focuses only on the Governments burden of proving the mental state and statutory aggravating factors in order to determine Mr. Torrezs "eligibility" for the death penalty, will refocus the jurors attention on the fact that a finding of guilt on an aggravating factor does not mean that death is the required sentence. Rather, by requiring the jury to decide Mr. Torrezs "eligibility" for the death penalty, hear additional evidence only if they find him eligible, and return to deliberate in the "selection" phase, the Court can reinforce the point that the finding of an aggravating factor, while necessary for imposition of the death penalty, does not require it. Second, a trifurcated proceeding will permit the Court to break the deliberative process into more manageable parts. The jury will not be overwhelmed at one time by complex instructions about mental state, statutory aggravating factors, nonstatutory aggravating factors, mitigating factors, and weighing. By breaking the process down, jurors may better understand the Court's instructions and engage in the sequential process contemplated under the FDPA. CONCLUSION In sum, the single-phase sentencing provisions of the FDPA raise serious constitutional questions under Ring. Moreover, a trifurcated proceeding permits the Court to structure deliberations in a way to minimize the danger of unfair prejudice, confusion of the issues, and misleading the jury. For these reasons, Mr. Torrez respectfully requests that this Court trifurcate the jury deliberations in this case. Respectfully submitted, Jorge Avila Torrez By Counsel 10

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/s/ _ Geremy C. Kamens Virginia Bar No. 41596 First Assistant Federal Public Defender Attorney for Mr. Torrez 1650 King St., Suite 500 Alexandria, Virginia 22314 Tel. (703) 600-0800 Fax (703) 600-0880 Geremy_Kamens@fd.org /s/ _ Christopher M. Davis Admitted Pro Hac Vice Attorney for Mr. Torrez Davis & Davis 1350 Connecticut Avenue, NW Suite 202 Washington, DC 20036 (202) 234-7300 cdavisdc@aol.com

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CERTIFICATE OF SERVICE I hereby certify that on the 30th day of April, 2012, I will electronically file the foregoing with the Clerk of Court using the CM/ECF system, which will then send a notification of such filing (NEF) to the following: Mr. Michael E. Rich Assistant United States Attorney 2100 Jamieson Ave. Alexandria, Virginia, 22314 (703) 299-3700 mike.rich@usdoj.gov

/s/ _ Geremy C. Kamens Virginia Bar No. 41596 First Assistant Federal Public Defender Attorney for Mr. Torrez 1650 King St., Suite 500 Alexandria, Virginia 22314 Tel. (703) 600-0800 Fax (703) 600-0880 Geremy_Kamens@fd.org

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