The opinion of the court was delivered by: (Chief Judge Kane)
Presently pending before the Court are the Government's motion to amend its notices of intent to seek the death penalty pursuant to 18 U.S.C. § 3593(a) with respect to Defendants Shawn Cooya and Ritz Williams (Doc. No. 506) and Defendants' unopposed motion to continue jury selection and trial (Doc. No. 519). The Court held a hearing on these motions on May 7, 2012. For the reasons stated more fully herein, the Court will grant both motions.
I. DEFENDANTS' MOTION TO RESCHEDULE JURY SELECTION AND TRIAL
On February 14, 2008, a grand jury returned an indictment charging both Defendants with one count of first-degree murder and charging Defendant Williams with an additional count of possession of a prohibited object. (Doc. No. 1.) Trial was initially scheduled to be held before the Honorable James F. McClure, Jr. on May 6, 2008 (Doc. No. 19),*fn1 but trial has since been continued four times (Doc. Nos. 29, 173, 267, 424, 457). Trial was scheduled to be held before this Court on April 10, 2012, but the Court rescheduled that date "[b]ased upon the unavailability of Attorney [Ronald C.] Travis because of the pending federal penalty phase retrial in" United States v. Hammer, No. 96-cr-239 (M.D. Pa.). (Doc. No. 424.) Trial is currently scheduled to commence on November 5, 2012. (Doc. No. 457.)
In their motion to continue jury selection and trial, Defendants request, once again, that this Court modify its trial calendar to accommodate the rescheduling of the retrial in Hammer, currently set to commence on February 5, 2013, because Attorney Travis serves as counsel in both Hammer and this action. (Doc. No. 519 ¶¶ 2-5.) Further, Attorney James A. Swetz has informed the Court that he is counsel in a criminal homicide trial set to commence on October 2, 2012, in the Court of Common Pleas of Monroe County, Pennsylvania. (Id. ¶ 10a.) Based on these conflicts, defense counsel requests that trial in this action be rescheduled to commence no earlier than August 5, 2013. (Doc. No. 519 ¶ 11.)
The Court appreciates the seriousness of this action and the difficulties that Attorneys Travis and Swetz would face in serving as counsel in complex, lengthy trials held in quick succession to one another. But the Court also recognizes the toll that further continuances will have on the Court, the Government, the victim's family, and the taxpayers. After weighing these concerns, the Court finds that it would be unfair to defense counsel to commence trial on November 5, 2012. Attorney Travis, however, indicated at the May 7, 2012 hearing that it may be possible that the retrial in Hammer will be rescheduled again. If that were to happen, the Court sees no reason why trial in this action could not commence in early 2013. Accordingly, the Court will grant Defendants' motion to continue jury selection and trial and vacate the order scheduling this matter for jury selection and trial on November 5, 2012, but the Court will defer setting a new trial date until conferring with the respective attorneys regarding the status of Hammer at a later date.
II. THE GOVERNMENT'S MOTION TO AMEND ITS NOTICES OF INTENT TO SEEK THE DEATH PENALTY
The Government seeks to amend its notices of intent to seek the death penalty with respect to each Defendant to include the non-statutory aggravating factor of victim impact. (Doc. No. 506.) Specifically, the Government seeks to add the following language in its amended notices of intent:
As demonstrated by the victim's personal characteristics as an individual human being and the impact of the death upon the victim and the victim's family and friends, the defendant caused injury, harm, and loss to the victim and the victim's family and friends, including but not limited to Gertrude Boursaw, Dustin Allery, James Renville, Natalie Allery, and Rita Hochstein.*fn2 (Doc. No. 506-1 at 4; Doc. No. 506-2 at 4.) The parties do not dispute that "[v]ictim impact testimony serves the legitimate purpose of informing the jury of the specific harm caused by the crime, thereby promoting an accurate assessment of [the] defendant's moral culpability and blameworthiness." United States v. Stitt, 760 F. Supp. 2d 570, 580 (E.D. Va. 2010) (citation and internal quotation marks omitted). Defendants, however, contend that the Government's motion to amend its notices of intent to seek the death penalty must be denied for two reasons: (1) the Government deliberately delayed in notifying Defendants that it would present victim impact evidence during the penalty phase of the trial; and (2) allowing victim impact evidence to be presented at this juncture would prejudice Defendants. (Doc. No. 515 at 22.)
Under the Federal Death Penalty Act, a "court may permit the attorney for the government to amend the notice upon a showing of good cause." 18 U.S.C. § 3593(a). The statute, however, does not provide a definition of good cause. In their brief in opposition and at the May 7, 2012 hearing, Defendants suggested that some courts have required the Government to show "excusable neglect" to amend a notice of intent to seek the death penalty. (Doc. No. 515 at 15, 17, 21-22.) Defendants, however, have failed to identify any decision in which a court held that the Government must demonstrate excusable neglect in this context,*fn3 and the Court "has only found cases that stand for the proposition that good cause is shown whenever the government can demonstrate that there was no deliberate delay by the government and no prejudice to the defendant." United States v. Barnes, 532 F. Supp. 2d 625, 629 (S.D.N.Y. 2008); see also United States v. Taveras, 436 F. Supp. 2d 493, 502 (E.D.N.Y. 2006) ("Good cause is demonstrated where the government's application was made in good faith and the defendant was not prejudiced.") (citation and internal quotation marks omitted); United States v. Pretlow, 770 F. Supp. 239, 242 (D.N.J. 1991) ("A definition of good cause which emphasizes the good faith of the government and any resulting prejudice to the defendant is sufficient to protect the defendant's and the public's interest in adequate notice."). Accordingly, the Court concludes that the Government is not required to show excusable neglect to amend a notice of intent to seek the death penalty but, rather, must show that there was no deliberate delay and that Defendants will not be prejudiced.
The Government contends that it did not deliberately delay in moving to amend its notices of intent because it developed the victim impact evidence during interviews with Allery's family members between February and March 2011 and then filed its motion to amend within one year.*fn4 (Doc. No. 506 at 3.) In opposition, Defendants suggest that the Government developed this evidence prior to February 2011. Specifically, Defendants contend that the United States Attorney for the Middle District of Pennsylvania was in contact with Allery's family members in September 2009, and that the United States Attorney "was aware that the mother and sister of Mr. Allery wanted the death penalty pursued since learning of the death of Mr. Allery." (Doc. No. 515 at 5.) To support this contention, Defendants quote portions of letters written by Allery's mother and sister in which they express their desire for the Government to seek the death penalty. (Id. at 6-8.)
First, the Court notes that a family member's articulation that the death penalty should be sought does not necessarily qualify as victim impact evidence. See Payne v. Tennessee, 501 U.S. 808, 823, 827 (1991) (stating that victim impact evidence consists of evidence "about the impact of the murder on the victim's family" and "is designed to show . . . [the] victim's uniqueness as an individual human being."). Even assuming arguendo, however, that the Government did not begin developing victim impact evidence in this matter until February 2011, at the May 7, 2012 hearing, counsel for the Government could not articulate any compelling reasons for the Government's one-year delay in filing the motion to amend its notices of intent to include the non-statutory aggravating factor of victim impact. In fact, Government counsel could not even articulate the exact nature of the victim impact evidence that would be presented during the penalty phase of the trial.
Second, Defendants have pointed to evidence that suggests that the
Government has failed to correct some of Allery's family members'
misunderstandings regarding Allery's death. Specifically, at the May
7, 2012 hearing, defense counsel pointed to a document dated March 10,
2011, describing that Ms. Boursaw, Allery's mother, saw that her son's
eyes had been gouged out and had been packed with gauze prior to his
burial. Both Defendants and the Government agree that Allery's eyes
were intact after the altercation with Defendants. According to
Defendants, the Government's failure to correct this -- and any other
-- misunderstanding regarding Allery's death has tainted the beliefs
of Allery's family members and will, therefore, inflame their
testimony during the penalty phase of the trial. Moreover, Defendants
contend that defense counsel terminated efforts to engage in
defense-initiated victim outreach with Allery's family because the
Government made this request and because the Government had not
included victim impact as a non-statutory aggravating factor in its
July 30, 2009 notices of intent to seek the death penalty.*fn5
(Id. at 13 n.1.)
After considering the above arguments, the Court will grant the Government's motion to amend its notices of intent to seek the death penalty to include the non-statutory aggravating factor of victim impact. In doing so, the Court is mindful of the fact that the Government has failed to present sufficient reasons for its delay in notifying Defendants of its plan to present victim impact evidence during the penalty phase of the trial. In fact, at the May 7, 2012 hearing, counsel for the Government asserted that victim impact evidence is introduced in nearly every capital trial, thereby acknowledging that the Government should be well aware from the beginning of a capital prosecution that such evidence is a relevant ...