Puerto Rico Association of Criminal Defense Lawyers

Justice Breyer: Get rid of Peremptory Challenges

In Miller-El v. Dretke, 545 U.S. --, No. 03–9659 (June 13, 2005) the Court grants habeas relief to petitioner on his Batson claim. Justice Souter wrote the Court's opinion. Justice Breyer wrote a concurrence in which he posits that peremptory challenges should be done away with altogether.  He seems to be worried about preservation of the democratic institution of the jury when he states

[...] If used to express stereotypical judgments about race, gender, religion, or national origin, peremptory challenges betray the jury’s democratic origins and undermine its representative function.

Of course, when he dissented from Booker's merits opinion and drafted Booker's remedial majority opinion, Justice Breyer's concern for the institution of the jury was nowhere to be found. While there is no doubt that peremptory challenges can and are abused from time to time, I would hate to have to try a case in which there were no peremptory challenges. What you would get is likely more background checks on jurors by the government in attempts to find for cause challenges, with the defendants in most cases not having access to this sort of information. See our post on this here.

Update: Professor Berman writes about Justice Breyer's concurrence here at Sentencing Law and Policy.

First Circuit Reverses Judge Gertner's Order to Empanel Two Juries in Capital Case (One "Non-Death-Qualified" for Guilt Phase, Another "Death Qualified" for Penalty Phase)

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.

Another Circuit to address this issue was the 5th Circuit in  U.S. v. Williams, No. 05-20080 (5th Cir. Feb. 14, 2005). See our previous posts on Williams here, and on Green here and here.

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.

The 9th Reverses on Prosecutorial Misconduct

Today we have a good case for defendants from the 9th Circuit. Yes, I know that you are reluctant to cite those 9th Circuit cases to the judges in our district, but save this one anyway.  In United States v. Weatherspoon, No. 03-10551 (9th Cir. May 6, 2005) the 9th Circuit reverses a conviction due to prosecutorial vouching and urging the jury to cure society's ill by convicting defendant of a felon in possession charge. The prosecutor is a repeat offender and two previous convictions were thrown out by 9th Circuit panels for similar conduct.  The Court points to it in the following passage:

In that respect we stress that the ethical bar is set higher for the prosecutor than for the criminal defense lawyer—a proposition that has been clear for at least seven decades (see Berger v. United States, 295 U.S. 78, 88 (1935); and see also such cases as United States v. Modica, 663 F.2d 1173 (2d Cir. 1981) as well as the ABA Standards for Criminal Justice § 3-5.8(b)). Although to be sure no lawyer, either public or private, should lay his or her own credibility on the line by expressing his or her own opinion about a witness’ believability, the difference is that a private lawyer’s impropriety in that respect carries no implication of official governmental support. And in this particular instance, it is surely worth noting that the selfsame prosecutor has engaged in exactly the same kind of vouching conduct in two instances that has led other panels of this court to upset convictions obtained by that prosecutor (see the unpublished opinions in United States v. Williams, 2004 WL 2370557 (9th Cir. Oct. 21, 2004) and United States v. Green, 2004 WL 2984356 (9th Cir. Dec. 28, 2004)). To label such recidivist conduct as “unremarkable” [the dissent's description] is itself remarkable.

Weatherspoon, at 4913.  To the criminal defense bar practicing in the district of Puerto Rico an opinion such as Weatherspoon offers little solace.  After all, we practice in a district where the U.S. Attorney's Office has been repeatedly warned and slapped on the hand by the First Circuit Court of Appeals for improper comments and misconduct, only to be warned and slapped on the hand again, with no reversals. If any Judges from the First Circuit read this blog, let me state loud and clear that your method of dealing with this has not been helpful at all. Make them really pay a price, such as a few convictions being reversed, and then --and only then-- will the prosecutors who are prone to misconduct start to get their act together.

Puerto Rico Capital Case Results

Yesterday the jury returned its verdict as to the second defendant facing death in the first capital case to be tried to a penalty phase in Puerto Rico's recent history with the federal death penalty, and the Court then announced the penalty phase verdicts as to both defendants. See previous posts here and here. As to the first defendant, whose penalty phase verdict had been kept sealed pending the presentation of penalty phase evidence and deliberations as to the second defendant, the jury voted to impose a life sentence.  As to the second defendant, the jury deadlocked, resulting in an automatic imposition of a life sentence.

The U.S. Attorney in San Juan, Puerto Rico --a Texan-- grabbed the deadlock to make a statement to the effect that no longer should people consider that it is not possible to get a jury to vote for the death penalty in Puerto Rico.  One of the defense attorneys answered that only someone from Texas where they execute people regularly could view the results of the case as an indication that the death penalty would be imposed by a jury in Puerto Rico.

Congratulations to Steve Potolsky, Gustavo Del Toro, Don West, and Juan Alvarez!

Second Defendant's Case Submitted to Jury in Penalty Phase of Capital Case in Puerto Rico

We reported earlier (see here) on how the penalty phase in a federal capital case --the first one to reach the penalty phase in Puerto Rico's recent history-- had been separated, so that the penalty phase evidence and jury deliberations against one defendant was carried out before any penalty phase evidence was presented as to the other defendant. The jury had returned a verdict as to defendant Lorenzo Catalán-Román and the verdict  has been kept sealed, pending conclusion of the penalty phase as to the co-defendant, Hernando Medina-Villegas.

Yesterday, the case as to the second defendant was submitted to the jury, with the jury being asked to return on Monday to commence deliberations as to Medina-Villegas. The case involves a robbery in which a security guard was killed. The Government has alleged the guard was pleading for his life, a fact disputed by the defense, who allege that such information did not appear in any of the FBI reports and was not provided to defendants until shortly before trial.

There is very strong opposition to the death penalty on the island, and the fact that it is the federal government seeking the death penalty makes the opposition turn very political as well.  I think most observers will be very surprised if the jury imposes the death penalty against either defendant. In the last capital case tried at the U.S. District Court in 2003, the jury acquitted both defendants in the guilt phase.

The strategy followed in both cases seems to be a common one in many capital cases. Recall that by mandate of federal law, anyone accused of a capital offense is entitled to be represented by two attorneys, and at least one of them has to be "learned in the law applicable to capital cases." As I indicated in my earlier post, this has required the U.S. District Court in San Juan to appoint attorneys (usually from Florida) experienced in federal capital cases. As you can imagine, the CJA payment of expenses for hotel, airfare, etc. can rapidly become rather steep. The guilt phase --at least as much as the jury can tell-- is handled mainly by the Puerto Rico attorneys who will serve as "associate counsel" in the case, with learned counsel then handling the penalty phase if necessary. In reality all the attorneys are deeply involved in both phases of the trial, but this apparent division of labor allows the learned counsel perhaps a bit more credibility with a jury that has already determined the defendant is guilty. It also allows him to use any lingering doubt in the jury's mind more effectively.

Sealed Penalty Phase Verdict Returned as to One of Two Defendants in Capital Case

There's an ongoing death penalty case being tried in the District of Puerto Rico before Judge Juan M. Pérez-Giménez. Only the two defendants certified for the death penalty are on trial in this round, with the non-death certified defendants to be tried at a later date.

The guilt phase concluded with guilty verdicts as to both defendants. Their attorneys had requested that the jurors deliberate separately as to each defendant in the penalty phase. Initially, the Court denied this request. Then the evidence as to the aggravating and mitigating factors was presented against defendant Lorenzo Catalán-Román, represented by Steve Potolsky (Florida) and Gustavo Del Toro (yes, that's Benicio Del Toro's father). Before any evidence was presented in the penalty phase against the other defendant, Hernando Medina-Villegas, represented by Donald West (Florida) and Juan Alvarez, Judge Pérez-Giménez reconsidered his earlier ruling, and decided that he would have the closing arguments, jury instructions and deliberations as to the first defendant before proceeding to have evidence presented as to the other defendant, but that the jury's verdict would not be made public until a verdict was returned as to the second defendant.

The jury commenced deliberations on Wednesday, and yesterday at about 4:00 p.m. returned a verdict as to defendant Lorenzo Catalán-Román.  Now evidence on aggravators and mitigators will be presented as to Hernando Medina-Villegas.

Puerto Rico's Constitution does not allow for the death penalty, so we have only gotten death penalty prosecutions as a result of federal prosecutions. The last death penalty case that was actually tried, back in 2003, ended up with acquittals as to both defendants on trial, and many believe that the jurors simply did not even want to get to the penalty phase.  In this case the evidence of guilt was apparently overwhelming, but I'll be very surprised if the jury imposes the death penalty as to either defendant.

To those who may be wondering why two Florida attorneys are representing the defendants in this case, it is because there are no "counsel learned in the law applicable to capital cases" in Puerto Rico, given our (until recent) complete unfamiliarity with death penalty litigation. As a matter of fact, this is the first capital case to reach the penalty phase since the feds reinstated the death penalty.

Additions to PRACDL Blog

We have added two new lists to the right sidebar of the blog - Booker in the First Circuit (includes District and appellate cases) and Booker Elsewhere. As the number of cases are likely to grow exponentially, we will in time start trimming these  lists to the most important cases.

Other addition (see left sidebar under heading For the Jury) are the Pattern Criminal Jury Instructions for the District Courts of the First Circuit, Judge D. Brock Hornby's 2005 Revisions to Pattern Criminal Jury Instructions for the District Courts of the First Circuit (updated 2/17/05), and the Fifth Circuit District Judges Association Pattern Jury Instructions (Criminal Cases) (2001). We will be adding more shortly.

Also, we remind those of you not familiar with the blog that you can search for information contained in previous posts by using the items listed under Categories heading in the left sidebar. That will take you back to any posts under any particular category from the time we started the blog in July 2004. Posts are often listed under more than one category.

Additional Findings to Justify 2 Juries for Capital Case

We previously posted here on Judge Nancy Gertner's Memorandum and Order Re: Bifurcation 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) -a capital case- whereby there would be two juries, one non-death qualified to decide guilt or innocence, and a second death-qualified jury to, if necessary, decide on punishment.

Judge Gertner has now issued Additional Findings re: Bifurcation, dated December 29, 2004, in said case.

Felicitaciones al Lcdo. Anglada

Congratulations are in order to PRACDL member Rafael Anglada for the winning verdict in US v. Juan Rivera-Reyes, Crim. No. 03-122 (DRD), a case in which the jury credited defendant's mere presence defense, established through the testimony of a co-defendant who had plead guilty.

A not so level playing field: Prosecutors Run NCIC Checks on Jurors While You Conduct Guesswork

While you are practically blindly conducting what amounts to almost a joke of a voir dire in jury selection, is it possible that the prosecutors are way ahead of you having run background checks of the prospective jurors in federal databases?

I always felt uneasy when I saw a federal prosecutor get the prospective jurors' list and hand it off to some US Attorney's Office secretary or legal assistant. Why?

I figured that since the U.S. Attorney's office is one firm handling all criminal prosecutions in federal court, they would certainly be able to keep tabs on jurors who had served previously and how the verdicts had come down.  Quite an advantage over the myriad solo practitioners litigating against the government!

But check out this article in Law.com as to Ohio prosecutors making use of federal NCIC database to screen some jurors.  There is something that smells bad about this, and the Courts should step in to correct it.