In a capital case, the Fifth Circuit has rejected a district court's order of bifurcation with a non-death-qualified jury to hear the guilt phase and a death-qualified jury to hear the penalty phase if necessary. See U.S. v. Williams, No. 05-20080 (5th Cir. Feb. 14, 2005). The Fifth Circuit rejected such procedure as contrary to the Federal Death Penalty Act. As we all know, Judge Nancy Gertner from the District of Massachusetts started this ball rolling with her decision in United States v. Darryl Green, et al., 343 F.Supp.2d 23 (D.Mass. 2004), Criminal No. 02-10301-NG (D.Mass, Nov. 3, 2004), which we posted on here, and here. The Fifth Circuit in Williams makes reference to Green at n. 4, stating as follows:
Williams’s pleadings in the trial court also purported to rely on a recent federal district court decision, now on appeal, that authorized a bifurcated jury in a death penalty case. United States v. Green, 343 F. Supp. 2d 23 (D. Mass. 2004), appeal filed, No. 05-1014 (1st Cir., Jan. 27, 2005). The Green court justified its ruling in part on a statistical proffer concerning the probability of exclusion of black jurors in Massachusetts from a death-qualified jury. Williams suggested that, given a chance for discovery, he would make a similar proffer in this case. It is too late. He made his initial motion for a bifurcated jury last October. He has forfeited this claim of error by failing to pursue it further in the district court or in this court.