Today in US v. Green, No. 05-1014 (1st Cir. May 12, 2005) the First Circuit reversed Judge Gertner's decision in US v. Green, Criminal No. 02-10301-NG (D.Mass) (see Memorandum and Order Re: Bifurcation of November 3, 2004 and Additional Findings Re: Bifurcation of December 29, 2004) to empanel 2 juries in a capital case, one non-death-qualified to hear the guilt phase, and another death-qualified to hear the penalty phase if necessary.
Update: As noted by Appellate Law & Practice here, the First Circuit did decline the Government's "invitation to review to pass upon the validity of the district court's suggestion that it might defer death-qualification altogether until after it takes a verdict on the issue of guilt or innocence." It concluded there was no live controversy as to that issue at the moment. Will Green be back to the First Circuit if Judge Gertner decides to postpone death-qualifying the jury until after the guilt phase? I would venture to say yes.