Puerto Rico Association of Criminal Defense Lawyers

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.

Fifth Circuit Rejects Order of Bifurcation with non-death-qualified jury for guilt phase and death qualified jury for penalty phase as contrary to Federal Death Penalty Act

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.

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.

Order for Empanelment of 2 Juries for Capital Case: One non-Death-Qualified for Guilt Phase, the Other Death-Qualified for Penalty Phase

In a first of a kind, U.S. District Judge Nancy Gertner has entered a Memorandum and Order Re: Bifurcation in United States v. Darryl Green, et al.,Criminal No. 02-10301-NG (D.Mass, Nov. 3, 2004) -a capital case- whereby there will be two juries, one non-death qualified to decide guilt or innocence, and a second death-qualified jury to, if necessary, decide on punishment.