United States v. Smith

481 F.Supp.3d 933

UNITED STATES of America, Plaintiff,

v.John Pearl SMITH, II, Defendant.

Case No. 3:16-cr-00086-SLG-1

United States District Court, D. Alaska.

Signed August 26, 2020

Frank V. Russo, Karen Elizabeth Vandergaw, William Arthur Taylor, Kyle Frederick Reardon, U.S. Attorney's Office, Anchorage, AK, James Brandon Nelson, James Dennis Peterson, United States Department of Justice capital Case Section, Washington, DC, for Plaintiff.

Corey Endo, Federal Public Defender Western District of Washington, Mark A. Larranaga, Walsh & Larranaga, Suzanne Lee Elliott, Law Offices of Suzanne Lee Elliott, Seattle, WA, Steven M. Wells, Steven M. Wells, PC, Anchorage, AK, Theresa M. Duncan, Duncan Earnest LLC, Santa Fe, NM, for Defendant.

ORDER REGARDING JURY INSTRUCTION ON EFFECT OF SELECTION-PHASE NON-UNANIMITY

Sharon L Gleason, UNITED STATES DISTRICT JUDGE

Before the Court at Docket 700 is the government's Motion in Limine to Preclude Evidence, Argument, or Instruction Encouraging Nullification. Defendant John Pearl Smith, II responded in opposition at Docket 813. The government replied at Docket 848. The government seeks an order precluding the defense "from asking, or arguing, for death penalty nullification, including informing the jury of the consequences of their failure to reach unanimity."¹

As the First Circuit recently explained, in the selection phase "jurors in a federal capital case cannot recommend that a defendant die unless ... [they] unanimously find that all the aggravators outweigh any mitigators to justify his getting death. And if they cannot make a unanimous recommendation, the judge steps in and can impose either a life sentence without release or any lesser sentence allowed by law."² In Mr. Smith's case, if the jury cannot reach a unanimous decision as to the appropriate sentence—the death penalty or life without parole—the parties agree that the Court will sentence Mr. Smith to life without parole. The issue presented by the instant motion is whether this Court should give the jurors an instruction as to the consequences of them being deadlocked in the selection phase—in other words, should the Court tell the jurors that if they fail to reach a unanimous sentencing decision, the Court will impose a life without parole sentence?

I. The parties’ positions and proposed jury instructions

The government asserts that capital defendants have "no right to inform the jury of the effect of their failure to reach a unanimous sentencing verdict" and that "any argument that a jury should be informed about the consequences of its failure to reach unanimity ... is foreclosed by Supreme Court and relevant Circuit court precedent."³ The government relies primarily on Jones v. United States , in which the Supreme Court held that a deadlock-consequences instruction is not constitutionally required by the Eighth Amendment and further declined to exercise its "supervisory powers to require that an instruction on the consequences of deadlock be given in every capital case."⁴ Accordingly, the government's proposed jury instruction on this topic reads:

In order to impose a sentence of death or life imprisonment without the possibility of release, all twelve jurors must unanimously agree that a sentence of death or a sentence of life imprisonment without the possibility of release is the appropriate sentence. Only if you are unanimously persuaded that the aggravating factors sufficiently outweigh the mitigating factor or factors found to exist to justify a sentence of death, or, in the absence of a mitigating factor, whether the aggravating factors alone are sufficient to justify a sentence of death, may you then return a verdict in favor of death.

***

If, after weighing the aggravating and mitigating factors, you unanimously recommend that a sentence of death shall be imposed, then the Court is required to sentence the defendant to death. If you unanimously recommend that a sentence of life imprisonment without the possibility of release shall be imposed, then the Court is required to sentence the defendant to life imprisonment without the possibility of release.⁵

The government's proposed penalty-phase jury instructions thus contain no information that the default sentence the Court will impose if the jury deadlocks is a life sentence without the possibility of release.

The government's proposed penalty-phase verdict form gives the jury two options: (1) death penalty or (2) life imprisonment without the possibility of release.⁶

Mr. Smith responds that Jones "merely held that capital jurors were not entitled to an instruction as to the consequences of jury deadlock," but that "district courts routinely give" an instruction as to the consequences of selection-phase deadlock.⁷ Mr. Smith's relevant proposed jury instructions read:

The choice between these alternatives is left exclusively to you. In order to impose a sentence of death, all twelve jurors must agree that death is the appropriate sentence. If one or more jurors does not conclude that death is the appropriate sentence, the death penalty will not be imposed. That is, if you do not unanimously agree on either life without the possibility of release or death, I will sentence John Smith to life imprisonment without possibility of release. Your decision will be binding on the court, and I will impose sentence on John Smith according to your choice.

***

Although the choice between life and death is an individual decision, a decision to impose a death sentence on John Smith must be a unanimous one. That means that every juror must individually determine that a sentence of death must be imposed. If all twelve of you do not reach the individual decision that a sentence of death should be imposed, I will impose a sentence of life without the possibility of release. Because the death penalty is never required, life without possibility of release is always an acceptable sentence under the law.

***

If, after weighing the aggravating and mitigating factors, you unanimously determine that a sentence of death shall be imposed, then the court is required to sentence John Smith to death; otherwise, whether the jury is unanimous for life or not unanimous, the sentence will be life without the possibility of release.⁸

Mr. Smith's proposed penalty-phase jury instructions thus contain three references to the default sentence the Court will impose if the jury cannot reach a unanimous sentencing decision. Mr. Smith's proposed penalty-phase verdict form gives the jury three options: (1) unanimous vote for life imprisonment without the possibility of release, (2) unanimous vote for a sentence of death, or (3) "After due deliberation, we are unable to come to unanimous agreement on the issues of punishment. We understand that the court will impose a sentence of life imprisonment without the possibly of release[.]"⁹

II. Model Jury Instructions

The government points to the Ninth Circuit's Model Jury Instruction and to the Federal Criminal Pattern Jury Instruction regarding jurors’ duty to deliberate.¹⁰ However, these model jury instructions were not drafted to be particular to Federal Death Penalty Act (FDPA) cases. While the Court gives them due consideration, it also takes guidance from the FDPA-specific model jury instructions from the Tenth and Eighth Circuits.

The Tenth Circuit's instruction on "Sentencing Choices and Responsibility" reads:

Members of the jury, you have unanimously found the defendant, __________, guilty of __________ as charged in count _____ of the indictment. This offense is punishable by death or by imprisonment for life without possibility of release. The choice between these alternatives is left exclusively to you. Your unanimous decision will be binding on the court, and I will impose sentence on the defendant according to your choice. If you cannot unanimously agree on the appropriate punishment, I will sentence the defendant to life imprisonment without possibility of release.¹¹

The Tenth Circuit jury instruction committee justified its decision to instruct the jury on the effect of non-unanimity as being "the most straightforward approach":

As explained in Jones v. United States , 527 U.S. 373, 380–81[, 119 S.Ct. 2090, 144 L.Ed.2d 370] (1999), if the jury is unable to reach a unanimous verdict, the sentencing determination passes to the court (i.e., the court does not discharge the jury and hold a second sentencing hearing). When the sentencing options are limited to death or life without possibility of release (which is the basic case this set of instructions is drafted to cover), there is only one sentence the court may impose. Thus, if the jury does not unanimously agree on a death sentence, it has effectively chosen a sentence of life without possibility of release, regardless of whether the jurors unanimously agreed on that alternative sentence , and it makes no sense to ask the jury whether they have done so. Therefore these instructions are most naturally written simply to ask the jury whether they have unanimously agreed on a death sentence and, if not, to direct them to indicate that a sentence of life without release should be imposed. Although a jury need not as a general matter always be told the consequences of their failure to return a unanimous verdict, Jones , 527 U.S. at 381–83, in this context it seems to be the most straightforward approach.¹²

Accordingly, the Tenth Circuit's sample "Special Findings Form" reads: "If you do not unanimously conclude that a sentence of death is justified and therefore must be imposed, sign the verdict for life imprisonment set out in Verdict—Life Imprisonment below, sign the certification in section IV, and notify the court that you have reached a decision."¹³ The Tenth Circuit has thus chosen to not even instruct the jury that it must unanimously find that a life sentence is appropriate; the jury need only not reach unanimity that a death sentence is justified in order to trigger a life sentence.

The Eighth...