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United States v. Con-Ui

United States District Court, M.D. Pennsylvania

May 10, 2017

JESSIE CON-UI, Defendant.



         Presently before me is the government's Motion in Limine to Preclude Comparative Proportionality Evidence (Doc. 918). For the reasons that follow, the motion will be granted.

         I. Analysis

         The government asks me to preclude Defendant from introducing at the penalty phase “comparative proportionality evidence, ” that is, information on other capital prosecutions, defendants, and victims, and, in particular, similarly-situated capital cases in which a sentence of death was not pursued or imposed. Comparative proportionality evidence is aimed at exploring whether a sentence of death is consistent with the sentences imposed in factually similar cases. See Barry Latzer, The Failure of Comparative Proportionality Review of Capital Cases (with Lessons from New Jersey), 64 Alb. L. Rev. 1161, 1167-68 (2001) (“The premise is that like cases should be treated alike, and if cases similar to the case under review are life-sentenced, this suggests that the death sentence is disproportionate.”).

         The government argues that comparative proportionality review does not constitute relevant mitigating evidence under 18 U.S.C. § 3592(a) and its eight factors, [1] and that any comparisons to other cases by the jury would run afoul of Supreme Court precedents regarding the scope of relevant mitigation evidence or information. (Doc. 918, at 2-3). The government contends that the facts and circumstances of other cases, including the backgrounds and characteristics of other defendants, have nothing to do with the background and character of Defendant in the instant case, or the circumstances of his offense. Id. at 4. Further, the government argues that the probative value of information from other cases is outweighed by the danger of confusing the issues and misleading the jury because every case is different and it is unlikely that the jury could be fully informed as to why a death penalty was not returned in other cases. Id. According to the government, comparative proportionality evidence would also distract the jury from its individualized determination of whether the death penalty is justified in this case. Id.

         Defendant argues that whether, and in what form, the defense will proffer such evidence is not a decision that can be made at this point in the litigation. (Doc. 933, at 16). However, as an abstract issue of law, Defendant argues that proportionality evidence is always an appropriate consideration for sentencing. I disagree.

         For support, Defendant first points to 18 U.S.C. § 3553(a)(6), entitled “Factors to be Considered in Imposing a Sentence.” One of the six factors to be considered is "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct[.]" Id. However, § 3553, which is part of the Sentencing Reform Act, is not a death-penalty-litigation statute; rather, it is a section governing the sentencing function generally. The enumerated factors are to be considered by “the Court.” Id. Nowhere does § 3553 refer to a jury's role in a penalty phase of a capital case. I am also unaware of any capital case in which comparative proportionality evidence was permitted within the confines of § 3553. The plain language of section § 3553 limits its reach to the imposition of punishments by a judge, not a jury in a capital case. Defendant cites to no authority that extends the scope of § 3553 to capital defendants and juries.

         Defendant next argues that I should follow United States v. Sampson, 335 F.Supp.2d 166 (D.Mass. 2004), aff'd, 486 F.3d 13, 44-45 (1st Cir. 2007), which held that proportionality evidence may be relevant as a mitigating factor for purposes of sentencing under the Federal Death Penalty Act (“FDPA”), 18 U.S.C. § 3591 et seq. Id. at 195. The case, however, is of no help to Defendant because, although Sampson recognized the value of proportionality in the jury's sentencing calculus, it ultimately excluded the evidence. The court reasoned that,

[i]n order to determine which of the many other cases are sufficiently similar to this case to bear on the question of proportionality, the jury would have had to hear a large amount of evidence. In effect, the court would have had to conduct many mini-trials of other FDPA cases, since a jury would be unable to perform meaningful proportionality review based on brief summaries of other cases. Rather, in order to fully appreciate the verdicts reached in those cases, jurors in this case would have had to hear substantial testimony regarding the crime and the defendant in the other cases. The amount of time that would have had to be spent educating jurors regarding all other FDPA cases in a non-prejudicial manner, which could have been measured in weeks or months, as compared to the amount of time spent on the mitigation case as a whole, likely would have diverted the jury's focus from the facts relating to Sampson and his crimes.

335 F.Supp.2d at 197. I agree. Although the FDPA eliminates considerations of undue delay, waste of time, and needless presentation of cumulative evidence from the court's calculus, it nevertheless holds that, at the penalty phase, evidence may be excluded if its probative value is outweighed by the danger of, among others, confusing the issues or misleading the jury. 18 U.S.C. § 3593(c).

         Although Defendant points out that “[w]hether, and in what form, the defense will proffer such evidence is not a decision that can be made at this point in the litigation, ” (Doc. 933, at 16), to permit the introduction of any type or form[2] of this particular class of evidence would turn the trial into a series of mini-trials “over the facts and circumstances of other prosecutions, in a situation where the specific facts and circumstances and the exact reason the juries reached their decisions in those other prosecutions are not available to the parties.” United States v. Taylor, 583 F.Supp.2d 923, 936 (E.D. Tenn. 2008), aff'd, 814 F.3d 340 (6th Cir. 2016). Death penalty trials take a substantial amount of time and effort and stretch over several weeks. It is impossible to meaningfully replicate the carefully curated trial environment in an attempt to make a jury fully appraised of the circumstances which convinced twelve other people that a death sentence was or was not justified. Even a comprehensive description and explanation of the facts of a capital case cannot fully capture jurors' credibility assessments, moral judgments, determinations of mitigating and aggravating factors, and deeply personal decisions based on private beliefs, values, and experiences.

         In imposing sentences, juries take into consideration intangible matters that cannot be reduced to a mere summation of the facts of a case. Comparison of cases without those elements would be superficial. Jurors' justifications are not memorialized and thus cannot be retrieved and conveyed in an exposition of facts. This is especially true of credibility assessments, which rarely, if ever, leave the confines of the deliberation room, and which often provide the underlying rationale for the sentence. It would be speculative to suggest that a summary of facts, no matter how detailed, could reveal jurors' credibility assessments and other personal and moral judgments involved in the determination of the appropriate punishment in other cases.

         Permitting comparative proportionality evidence also runs the risk of improperly suggesting to jurors that their discretion is limited or should be guided by past precedent. Jurors might, thus, assign disproportionate weight to comparative proportionality evidence because, while typical mitigating factors originate internally from the defendant, such as his mental health status or the impact on his family, comparative proportionality evidence originates externally from other courts. The weight that the source of this evidence necessarily carries with it presents a high risk of misleading and confusing the jury by suggesting that its sentencing discretion is circumscribed.

         The introduction of comparative proportionality evidence might similarly amount to an attempt at instructing the jury on the law of sentencing in capital cases, suggesting some guiding principles, which may implicitly stem from the outcomes of other trials, in the consideration of punishment in the instant case. Jurors are, in fact, not bound by the pronouncements of any court (or any other jury, for that matter) when searching ...

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