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U.S. v. O'DRISCOLL

February 15, 2002

UNITED STATES OF AMERICA
V.
MICHAEL J. O'DRISCOLL



The opinion of the court was delivered by: Muir, District Judge.

    OPINION

I. Background.

On August 29, 2001, a federal grand jury returned an, indictment charging Michael J. O'Driscoll with murder in the first degree. The indictment states in toto as follows:

On or about June 1, 1997, at the Allenwood Federal Correctional Complex, United States Penitentiary, in Union County, Pennsylvania, on land acquired for the exclusive use of the United States, under the exclusive jurisdiction of the United States and within the Middle District of Pennsylvania, the defendant,

MICHAEL J. O'DRISCOLL

willfully, deliberately, maliciously, unlawfully, and with premeditation and malice aforethought, did kill Robert M. Frankhouser by stabbing him.
All in violation of Title 18, United States Code, Section 1111(a) and (b).*fn1

On September 21, 2001, O'Driscoll appeared before the court for arraignment and entered a not guilty plea. On October 9, 2001, the government filed a notice of its intent to pursue the death penalty.*fn2 This case is presently on the May, 2002, trial list with a pretrial conference scheduled for March 25, 2002, at 2:00 p.m.

On November 8, 2001, O'Driscoll filed eleven pretrial motions, including a motion entitled "Motion to Bifurcate Trial, Summoning and Empaneling a Second Jury Only In the Event of Conviction of First-Degree Murder." By order of December 18, 2001, we denied O'Driscoll's so-called motion to bifurcate. Briefs in support of the ten other pretrial motions were filed on December 21, 2001. The government's briefs in opposition were filed on January 25, 2002. The motions became ripe for disposition on February 8, 2002, when O'Driscoll filed some reply briefs and elected not to file others.*fn3 With the exception of two motions that are interrelated, we will address O'Driscoll's motions in the order in which they appear on the court's docket.

II. Pretrial Motions.

A. O'Driscoll's motion entitled "Motion to Strike Non-Statutory Aggravating Factor No. 3 or in the Alternative for Discovery with respect to Non-Statutory Aggravating Factor No. 3." (Doc. 28)

O'Driscoll requests that the non-statutory aggravating factor No. 3 of victim impact evidence set forth at pages 6 and 7 of the government's notice of intent to seek the death penalty be stricken. That portion of the government's notice states as follows:

3. Victim Impact Evidence. As reflected by the victim's personal characteristics as an individual human being and the impact of the offense on the victim and the victim's family, the defendant caused loss, injury, and harm to the victim and the victim's family, see Payne v. Tennessee, 501 U.S. 808, 825-827 (1991), including, but not limited to, the following:
a) Characteristics of victim — The defendant caused the death of Robert M. Frankhouser, another federal inmate who had served almost all of his term of incarceration. Frankhouser was considered a highly trustworthy inmate by prison staff and held the position of hospital orderly;
b) Impact of the offense on the family of the victim — The victim's family has suffered severe and irreparable harm. The victim's family was looking forward to the victim's release from prison so he could start a new life. They forever will be denied the ability to share that life with their family member.

In the alternative O'Driscoll requests permission to engage in discovery relating to this factor.

The Federal Death Penalty Act of 1994 permits a jury to consider victim impact evidence.*fn4 Specifically, § 3593 states in relevant part as follows:

The factors for which notice is provided under this subsection may include factors concerning the effect of the offense on the victim and the victim's family, and may include oral testimony, a victim impact statement that identifies the victim of the offense and the extent and scope of the injury and loss suffered by the victim and the victim's family, and any other relevant information.

Victim impact evidence has been found to be an appropriate subject for a jury to consider. Payne v. Tennessee, 501 U.S. 808, 825-827 (1991); see also United States v. Minerd, 176 F. Supp.2d 424, 448 (W.D.Pa. 2001) (Cohill, J.) ("Victim impact evidence during the penalty phase . . . does not violate the Eighth Amendment. . . . The [Federal Death Penalty Act] permits such testimony as long as the government gives notice to the defendant. ")

In a prior death penalty case, United States v. Hammer, No. 4:CR-96-239 (M.D.Pa. indictment filed Sept. 18, 1996), we permitted the jury to consider as an aggravating factor the impact of the killing on the family of the victim. In that case we instructed the jury as follows:

The government has alleged as an aggravating factor the impact the murder of Andrew Marti has had on Andrew Marti's family. In order for you to consider the impact of the murder on the family of Andrew Marti, the government must prove beyond a reasonable doubt that David Paul Hammer caused some injury or harm to Andrew Marti's family, which injury or harm may be physical, medical, financial, social, psychological or emotional.

Furthermore, the question presented to the jury relating to victim impact evidence was as follows:

Does the jury unanimously find that the Government has established beyond a reasonable doubt that David Paul Hammer caused harm to the family of Andrew Marti as a result of the impact of the killing upon the family?*fn5

We see no reason to deviate from our decision in the Hammer case. The consequences of O'Driscoll's action in taking the life of Mr. Frankhouser, if the jury finds O'Driscoll guilty of first-degree murder, are clearly an appropriate subject for the jury's consideration. See United States v. Bin Laden, 126 F. Supp.2d 290, 300 (S.D.N.Y. 2001) (Sand, J.) ("Certainly, the deleterious effects of a capital defendant's actions are an appropriate subject of sentencing consideration."). We will deny O'Driscoll's motion to strike from the government's notice of intent to seek the death penalty the non-statutory aggravating factor of victim impact evidence.

In the alternative O'Driscoll requests discovery regarding the victim impact evidence. O'Driscoll argues that because of the government's use of the language "including, but not limited to" in paragraph 3 of its notice to seek the death penalty he is unable to investigate and prepare for the witnesses or evidence the government may try to present. O'Driscoll claims that the notice is vague because it does not identify the family members or set forth details as to the nature of the harm suffered. O'Driscoll also argues that we are "charged with the responsibility of restricting the presentation of victim impact evidence so that the emotion inherently associated with such evidence does not overwhelm the jury's obligation to make a reliable, individualized sentencing determination based upon a full and fair consideration of all mitigating and all aggravating circumstances." Doc. 49, O'Driscoll's Brief in Support, page 10.

The presentation of victim impact evidence can be problematic because of the potential for emotional outbursts during the testimony of family members. One district court in commenting on victim impact evidence stated as follows:

This is the most problematical of all of the aggravating factors and may present the greatest difficulty in determining the nature and scope of the "information" to be considered. Congress expressly provided for victim impact consideration in the Death Penalty Statute but did not put any limits on what can be considered. § 3593(a). That is a matter for the court's discretion and must be determined with consideration for the constitutional limitation that the jury must not be influenced by passion or prejudice.

United States v. McVeigh, 944 F. Supp. 1478, 1491 (D.Colo. 1996) (Matsch, J.). Victim impact testimony cannot be totally divorced from emotion. However, the court has an obligation to keep the emotions of witnesses in check so that the jury is, as noted by Judge Matsch, not "influenced by passion or prejudice."

In order to evaluate the potential prejudice of victim impact testimony, one court required the government to submit a written statement describing the proposed testimony of each victim impact witness. United States v. Glover, 43 F. Supp.2d 1217, 1235-36 (D.Kan. 1999) (Lungstrum, J.). The court also adopted instructions to be given the witnesses relating to control of their emotions at the time their testimony was presented. Id.

We are not convinced that the government's notice of intent to seek the death penalty is so vague that it is impossible for defense counsel to undertake an investigation and prepare a defense. However, out of an abundance of caution we will adopt procedures similar to those adopted by the district court in Glover.*fn6

B. O'Driscoll's motions entitled "Motion to Dismiss Notice of Aggravating Factors, and/or for Discovery and a Hearing, Since Mr. O'Driscoll has been Unfairly, Arbitrarily, and Capriciously Targeted for Capital Punishment" and "Motion for Discovery and a Hearing and to Dismiss the Notice of Aggravating Factors on the Grounds that the Federal Death Penalty is Sought on the Impermissible Basis of Race and Arbitrary Basis of Region." (Docs. 29 and 36)

O'Driscoll requests that we strike the government's notice of intent to seek the death penalty or in the alternative permit him to engage in discovery regarding the government's decision to pursue the death penalty. O'Driscoll basically argues that there have been numerous murders by federal inmates of other inmates and in only a handful of those cases has the government sought the death penalty. O'Driscoll claims that because of the low number of capital prosecutions the government's pursuit of the death penalty in his case is arbitrary and capricious. He further argues that the death penalty has been pursued on the arbitrary basis of race and region.

The decision to prosecute, including the decision to seek the death penalty, rests with the prosecutor. See Wayte v. United States, 470 U.S. 598, 607 (1985); United States v. Nguyen, 928 F. Supp. 1525, 1544-45 (D.Kan. 1996) (Belot, J.); United States v. Bradley, 880 F. Supp. 271, 278-81, 291 (M.D. Pa. 1994) (Rambo, J.); United States v. Pretlow, 779 F. Supp. 758, 776-77 (D.N.J. 1991) (Raggi, J.). The mere fact that the government has only sought the death penalty in a small number of murder cases involving federal inmates is not sufficient to demonstrate that the prosecution of O'Driscoll is arbitrary and capricious. Id. Furthermore, the fact that a greater number or fewer death penalty cases are brought in other regions of the country does not establish that the pursuit of the death penalty in this case is arbitrary and capricious. United States v. Bin Laden, 126 F. Supp.2d 256, 263 (S.D.N.Y. 2000) (Sand, J.). More is required. O'Driscoll must show that the government is seeking the death penalty for an impermissible reason, such as race, religion, or in retaliation for exercising his right to trial by jury. Id.

To the extent that O'Driscoll is claiming that he is the victim of selective or discriminatory prosecution, in order to prevail on such a claim he must show that the decision to prosecute had both a discriminatory effect and a discriminatory intent. See United States v. Armstrong, 517 U.S. 456, 465 (1996). A discriminatory effect is demonstrated by establishing that "similarly situated individuals" were treated differently. Id. A discriminatory intent is demonstrated by the existence of racial, religious or other impermissible animus. O'Driscoll must demonstrate that "the decisionmakers in his case acted with discriminatory purpose." McCleskey v. Kemp, 481 U.S. 279, 292 (1987) (emphasis in original)

Before there can be discovery on a claim of selective prosecution, a defendant must first establish a "colorable" claim of selective prosecution. Bradley, 880 F. Supp. at 279. Furthermore, the "evidence [must be] specific to [the defendant's] own case that would support an inference that racial consideration [or other impermissible factor] played a part" in the prosecutor's decision to seek the death penalty. McCleskey, 481 U.S. at 292-93. Also, a hearing on such a claim "is necessitated only when the motion alleges sufficient facts to take the question past the frivolous state and raises a reasonable doubt as to the prosecutor's purpose. United States v. Eklund, 733 F.2d 1287, 1290 (8th Cir. 1984), cert. denied, 471 U.S. 1003 (1985) (citations omitted). Most importantly, however, `[t]here is a presumption that prosecutions are commenced in good faith and without discriminatory motive." Bradley, 880 F. Supp at 278.

O'Driscoll has failed to proffer any evidence from which it can be concluded that the government is seeking the death penalty for an impermissible reason. O'Driscoll's reliance on a United States Department of Justice statistical study of the federal death penalty system is misplaced. See Bin Laden, 126 F. Supp.2d at 258-63. We will deny O'Driscoll's motions requesting that we strike the government's notice of intent to seek the death penalty or in the alternative permit him to engage in discovery regarding the government's decision to pursue the death penalty.

C. O'Driscoll's motion entitled "Motion to Dismiss Non-Statutory Aggravating Factors on the Basis that Congress did not Enact `Proportionality Review' as Part of the Federal Death Penalty Act of 1994." (Doc. 30)

The Federal Death Penalty Act of 1994 is a weighing statute, i.e., a jury in deciding whether to impose the death penalty is required to weigh the aggravating circumstances and mitigating circumstances and only recommend the death penalty if the aggravating circumstances outweigh the mitigating circumstances. Relying on Zant v. Stephens, 462 U.S. 862 (1983), O'Driscoll argues that a weighing statute may not constitutionally resort to non-statutory aggravating factors without also providing for mandatory comparative proportionality review and, therefore, requests that the non-statutory aggravating factors set forth in the government's notice of intent to seek the death penalty be dismissed.

Comparative proportionality review in death penalty cases involves an appellate determination of whether or not a sentence of death in one case is arbitrary or capricious by comparing it to the sentences imposed in similar cases. See Pulley v. Harris, 465 U.S. 37, 43 (1984). The Constitution does not require proportionality review of death sentences. Id. In Pulley the Supreme Court stated:

[W]e did not hold [in Zant] that without comparative proportionality review the statute would be unconstitutional. To the contrary, we relied on the jury's finding of aggravating circumstances, not [an appellate court's] finding of proportionality, as rationalizing the sentence. Thus, the emphasis was on the constitutionally necessary narrowing function of statutory aggravating circumstances. Proportionality review was considered to be an additional safeguard against ...

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