Defendants are charged with various drug offenses and the January 28, 1992 murder of Juan Carlos-Bacallo. The government has charged Defendants pursuant to 21 U.S.C. § 848 which proscribes involvement in a continuing criminal enterprise and provides for the death penalty for certain murders occurring within the course of such an enterprise. The government is seeking the death penalty for defendant Murray. Trial is scheduled to commence on June 6, 1994. Before the court is defendant Murray's pretrial motion which includes both a facial constitutional challenge to the federal death penalty statute and a challenge to the statute as applied to him. He also seeks discovery in connection with his selective prosecution claim and dismissal of various of the aggravating factors set forth by the government. These issues will be addressed seriatim.
Title 21 U.S.C. § 848, which proscribes the act of engaging in a "continuous criminal enterprise," further provides:
Any person engaging in or working in furtherance of a continuing criminal enterprise . . . who intentionally kills or counsels, commands, induces, procures, or causes the intentional killing of an individual and such killing results, shall be sentenced to any term of imprisonment, which shall not be less than twenty years, and which may be up to life imprisonment, or may be sentenced to death . . . .
21 U.S.C. § 848(e)(1)(A). Defendants confronted with the potential of capital punishment are entitled to notice from the government of its intent to seek the death penalty, and of the statutory and non-statutory aggravating factors it intends to introduce to support that sentence. 21 U.S.C. § 848(h). Further, a defendant is due a separate hearing, before the jury or trial judge, on the sentencing issues. 21 U.S.C. §§ 848(g), (i). At the capital sentencing hearing, the prosecution must present aggravating factors which warrant sentencing the defendant to death. Section 848(n) enumerates twelve different aggravating factors.
See 21 U.S.C. § 848(n)(1)-(12). To impose the death penalty, the jury first must unanimously find one of the factors numerated at § 848(n)(1), and then at least one factor among §§ 848(n)(2) through (n)(12) beyond a reasonable doubt. 21 U.S.C. § 848(k). The jury, after making these first two findings, may then consider non-statutory aggravating factors submitted by the government. 21 U.S.C. § 848(h)(1)(B). The jury then weighs these competing circumstances to determine the propriety of the death sentence. 21 U.S.C. § 848(k). If the jury is unable to agree on a unanimous death verdict, it returns a life sentence. If a death sentence is imposed, the defendant has a right to appellate review as set forth in § 848(q).
II. Whether § 848 is Being Unconstitutionally Applied to Defendant Murray in a Racially Discriminatory Manner
Defendant Murray first contends that 21 U.S.C. § 848 is unconstitutional because it arguably is being applied to him in a racially discriminatory manner. Defendant points to evidence that of the thirty-six capital prosecutions under § 848 so far authorized by the Attorney General, twenty-eight of the defendants, or 78% of the total, have been African-American. (Def. App. 19A.) In contrast, from 1987 to mid 1990, only 16.7% of all § 848 defendants -- both capital and non-capital -- were African-American. (Id. at 25A.) Defendant maintains that the chances that this result is statistically random is less than one in a million. (Id. at 26A.) Defendant argues that these statistics indicate that the decisions to seek the death penalty under § 848 are influenced by impermissible racial factors and that, consequently, the burden should shift to the government to set forth a legitimate reason for the racial disparity in these prosecutions. Defendant's position rests upon both Eighth Amendment and equal protection arguments.
In response, the government notes that it sought the death penalty against all three Defendants, all of whom are African-American, but that its request was approved only as to defendant Murray, the member of the group who allegedly carried out the murder of Mr. Bacallo. The government also insists that several statutory aggravating factors apply, providing a legitimate basis for the death penalty prosecution against Murray.
The penultimate case on this issue is McCleskey v. Kemp, 481 U.S. 279, 95 L. Ed. 2d 262, 107 S. Ct. 1756 (1987), which addressed both the equal protection and cruel and unusual punishment arguments which defendant Murray raises here. In McCleskey v. Kemp, 481 U.S. 279, 95 L. Ed. 2d 262, 107 S. Ct. 1756 (1986), a black capital defendant sought habeas relief alleging, inter alia, that Georgia's capital sentencing scheme was being applied in a racially discriminatory manner. The petitioner's primary evidence of the discrimination was an extensive statistical research project, the "Baldus study," that analyzed over 2,000 murder cases in Georgia and concluded that decisions to seek the death penalty were racially skewed. Defendants who had killed white victims received the death penalty in 11% of cases, but those charged with killing blacks only received the death penalty in 1% of the cases. Id. at 286. The study further demonstrated that blacks who killed whites were likely to receive a death sentence in 22% of the cases, whites who killed whites, in 8% of the cases, blacks who killed blacks, 1% of the cases, and whites who killed blacks, 3% of the cases. Id. at 286. Finally, the study found a substantial disparity between the rates at which prosecutors sought the death penalty for black defendants who had killed white victims (70% of the cases) in contrast to black defendants and black victims (15% of the cases) or white defendants and black victims (19% of the cases). Id. at 287.
The Court first addressed the petitioner's equal protection argument
based on the statistical evidence that defendants who kill whites are more likely to receive the death penalty, and that black defendants are more likely to receive the death penalty than white defendants. Id. at 291. As a black defendant who had killed a white police officer, both facts were relevant to McCleskey's situation. The Court noted that to succeed on this claim, the petitioner would have to show both discriminatory purpose and a discriminatory effect of the sentencing scheme. Id. at 292. The Court determined that the defendant could not show the former, as applied to him. It explained that the statistics that the petitioner submitted may have shown systemic discrimination, but that they had no direct nexus to his case. The Court acknowledged that in certain actions -- such as jury venire violation and Title VII cases -- courts have permitted statistical evidence to establish the requisite intent. However, the Court concluded that the capital sentencing situation was fundamentally different. Id. For example, the idiosyncracies and uniqueness of individual juries, id. at 294, the inability to question the juries' beliefs behind capital verdicts, the vast number of factors arising from the characteristics of the defendants and offenses, which influence the capital decisions, id., the broad discretion vested in prosecutors, and the difficulty in examining, after the fact, their capital decisions, all counsel against giving much significance to mere statistics. Id. at 296.
The Court commented:
Implementation of these [criminal] laws necessarily requires discretionary judgments. Because discretion is essential to the criminal justice process, we would demand exceptionally clear proof before we would infer that the discretion has been abused. The unique nature of the decision at issue in this case also counsel against adopting such an inference from the disparities indicated by the Baldus study.
Id. at 297. Finally, the Court noted that the government had justified its decision to seek the death penalty against McCleskey, since one of the statutory bases for the penalty had been satisfied. Id. The Court thus concluded that the petitioner had failed to make out a meritorious equal protection argument.
McCleskey is arguably distinguishable from the case at bar. In that case, the bias of juries and of the numerous prosecutors, practicing throughout Georgia over a length of time, were at issue. Here, Defendant does not argue that § 848 capital defendants have been convicted in a racially disparate manner, but that they have been approved as capital defendants in a racially disproportionate manner. Moreover, these capital decisions have been made by a very small number of Attorneys General who authorized federal death penalty prosecutions over a relatively short time period.
Nonetheless, McCleskey counsels that statistical evidence alone is insufficient to satisfy the "discriminatory purpose" prong of an equal protection claim. This court is not persuaded that McCleskey is sufficiently distinct such that its holding is inapplicable to this case. Therefore, Defendant's equal protection argument, based solely on statistical evidence and analysis of thirty-six capital defendants, must fail to the extent that it seeks dismissal of the indictment.
The McCleskey Court also considered the petitioner's argument that the Georgia capital sentencing scheme violated the Eighth Amendment's protection against cruel and unusual punishment. The Court first explained that Georgia's sentencing scheme properly accommodated constitutional principles requiring a limitation on the discretion allotted to the sentencing body to impose the death penalty (via aggravating circumstances) along with room to present mitigating factors. 481 U.S. at 301-06. McCleskey argued that the sentence was arbitrary as applied to him, since it was imposed in an allegedly racially discriminatory manner. Id. at 308. The Court held that the Baldus study did not indicate so significant a possibility of racial prejudice tainting the sentencing scheme as to render Georgia's sentencing scheme unconstitutional. Id. at 313. The Court explained that while the study suggested the existence of sentencing discrepancies based on race, that disparities were inherent in any sentencing scheme and should not be presumed to be based on "invidious" factors. Id. at 312-13.
In the case at bar, Defendant has presented only evidence such as the type rejected by the McCleskey Court. Defendant's statistics merely show the possibility that race has influenced the government's decisions to seek the death penalty under § 848. This court can not conclude that the statistics offered by Defendant warrant dismissal of the indictment in light of the Supreme Court's ruling in McCleskey.
III. Whether the Court Should Order Discovery of Documents and Testimony, or an Evidentiary Hearing, About the Decision to Seek the Death Penalty in Order to Pursue a Claim of Racial Discrimination
A. Standard and Application
Defendant contends that the decision to seek the death penalty against him is tainted by racially impermissible factors. As discussed above, he seeks dismissal of the indictment on this ground but, in the alternative, requests discovery or an evidentiary hearing to support his racial discrimination argument.
There is a presumption that prosecutions are commenced in good faith and without a discriminatory motive. Attorney General v. Irish People, Inc., 221 U.S. App. D.C. 406, 684 F.2d 928, 947 (1982), cert. denied sub nom., Irish People, Inc. v. Smith, 459 U.S. 1172, 74 L. Ed. 2d 1015, 103 S. Ct. 817 (1983) (quoting United States v. Falk, 479 F.2d 616, 620 (7th Cir. 1973)). Moreover, prosecutors retain substantial discretion to determine when and whom to prosecute. Wayte v. United States, 470 U.S. 598, 607, 84 L. Ed. 2d 547, 105 S. Ct. 1524 (1985); United States v. Berrigan, 482 F.2d 171, 180 (3d Cir. 1973). The decision to prosecute rests on a wide number of factors:
[Some of the] considerations are the likelihood of conviction, turning on the choice of a strong case to test uncertain law, the degree of criminality, the weight of the evidence, the credibility of witnesses, precedent, policy, the climate of public opinion, timing and the relative gravity of the offense. . . . Still other factors are the relative importance of the offense compared with the competing demands of other cases on the time and resources of investigation, prosection and trial. . . . All of these considerations point to the wisdom of vesting broad discretion in the United States Attorney.