United States v. Wilson

• Decision Date: 15 February 2013
• Docket Number: No. 04–CR–1016 NGG.,04–CR–1016 NGG.
• Citation: 923 F.Supp.2d 481
• Parties: UNITED STATES of America v. Ronell WILSON, Defendant.
• Court: U.S. District Court — Eastern District of New York

923 F.Supp.2d 481

UNITED STATES of America

v.Ronell WILSON, Defendant.

No. 04–CR–1016 NGG.

United States District Court,

E.D. New York.

Feb. 15, 2013.

Colleen Quinn Brady, The Law Office of Colleen Quinn Brady, David Stern, Rothman, Schneider, Soloway & Stern, P.C., Beverly Van Ness, Michael N. Burt, Law Office of Michael Burt, New York, NY, for Defendant.

Carter H. Burwell, Colleen Elizabeth Kavanagh, Jack Smith, James G. McGovern, Jason Allen Jones, Celia Cohen, Shreve Ariail, United States Attorneys Office, Brooklyn, NY, for Plaintiff.

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, District Judge.

In May, the court will begin a penalty trial to determine whether Defendant Ronell Wilson will be sentenced to death or to life imprisonment. The Government plans to argue that a number of aggravating factors justify a death sentence, including Wilson's potential for future dangerousness. Wilson contends that, because the only alternative to a death sentence in his case is life imprisonment without the possibility of release, there is no reliable way to predict his future dangerousness, let alone to prove it beyond a reasonable doubt. He thus moves to preclude the Government from attempting to establish future dangerousness as an aggravating factor, pursuant to the Fifth Amendment, the Eighth Amendment, and the Federal Death Penalty Act (“FDPA”). In the alternative, he requests an evidentiary hearing regarding the reliability of predictions of future dangerousness for inmates of a federal prison. For the reasons that follow, Wilson's motion and alternative request for an evidentiary hearing are DENIED.

I. BACKGROUND¹

“Under the FDPA, a defendant is eligible for the death penalty if the jury finds [1] the charged homicide, [2] a statutory intent element or threshold mental culpability factor under [18 U.S.C.] § 3591(a)(2), and [3] at least one of the statutory aggravating factors in § 3592(c).” United States v. Fell, 531 F.3d 197, 216 (2d Cir.2008) (emphasis added); see also Jones v. United States, 527 U.S. 373, 376–77, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999). If the jury finds the defendant “death eligible,” it must then make a “selection decision”—a determination of “whether the defendant should be sentenced to death or life imprisonment.” Fell, 531 F.3d at 237–38 (emphasis added). The selection decision must be based on a weighing of all the aggravating and mitigating factors. See18 U.S.C. § 3593(e); Fell, 531 F.3d at 237. Aggravating factors include those listed in the FDPA and “any other aggravating factor for which notice has been given.” 18 U.S.C. § 3592(c); see also id. § 3593(a) (establishing a notice requirement). The Government bears the burden of establishing any aggravating factor beyond a reasonable doubt. Id. § 3593(c).

In this case, the Government has given notice of its intent to allege both statutory and non-statutory aggravating factors. (Gov't Notice of Intent to Seek the Death Penalty (Dkt. 174).) One of the non-statutory aggravating factors is that Wilson “represents a continuing danger to the lives and safety of other persons,” and “is likely to commit criminal acts of violence in the future that would constitute a continuing and serious threat to the lives and safety of others.” ( Id. at 4.) This is commonly referred to as the “future dangerousness” aggravating factor.²

On January 19, 2013, Wilson filed a motion asking this court to either: (1) “dismiss the future danger aggravator outright,” pursuant to the Fifth Amendment, Eighth Amendment, and the FDPA; or (2) “order an evidentiary hearing concerning the reliability of predictions of future danger within the confines of a United States penitentiary.” (Def. Mem. (Dkt. 1005) at 14.) The Government filed a letter in opposition (Gov't Opp'n (Dkt. 1014)) and Wilson replied (Def. Reply (Dkt. 1019)).

II. DISCUSSIONA. Fifth and Eighth Amendments

Wilson argues that the future dangerousness aggravating factor should be stricken under the Fifth and Eighth Amendments.³ (Def. Mem. at 2, 12.) This argument is contrary to Supreme Court precedent.

In Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), the Supreme Court addressed the constitutionality of a Texas statute that permitted a jury to impose the death penalty only if it found “a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” Id. at 269, 96 S.Ct. 2950. The petitioner argued that this statute violated the Eighth and Fourteenth Amendments because it was “impossible [for a jury] to predict future behavior.” Id. at 274, 96 S.Ct. 2950. The Court disagreed. Id. at 275, 96 S.Ct. 2950. It reasoned as follows:

It is, of course, not easy to predict future behavior. The fact that such a determination is difficult, however, does not mean that it cannot be made. Indeed, prediction of future criminal conduct is an essential element in many of the decisions rendered throughout our criminal justice system. The decision whether to admit a defendant to bail, for instance, must often turn on a judge's prediction of the defendant's future conduct.... The task that a Texas jury must perform in answering the statutory question in issue is thus basically no different from the task performed countless times each day throughout the American system of criminal justice. What is essential is that the jury ha[s] before it all possible relevant information about the individual defendant whose fate it must determine. Texas law clearly assures that all such evidence will be adduced.

Id. at 274–76, 96 S.Ct. 2950.

The Supreme Court next addressed the constitutionality of Texas's future dangerousness factor in Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). There, the petitioner asserted “that psychiatrists, individually and as a group, are incompetent to predict with an acceptable degree of reliability that a particular criminal will commit other crimes in the future and so represent a danger to the community.” Id. at 896, 103 S.Ct. 3383. The Court again disagreed for three main reasons. Id. It first found the petitioner's argument inconsistent with Jurek—if it was “not impossible for even a lay person sensibly to arrive at the conclusion” that a defendant represented a continuing danger to the community (as the Court had found in Jurek ), then it “ma[de] little sense, if any, to submit that psychiatrists ... would know so little about the subject that they should not be permitted to testify.” Id. at 896–97, 103 S.Ct. 3383. Second, the Court reasoned that “the rules of evidence ... anticipate that relevant, unprivileged evidence should be admitted and its weight left to the fact finder, who would have the benefit of cross examination and contrary evidence by the opposing party.” Id. at 898, 103 S.Ct. 3383. Third, the Court was “not persuaded that [testimony on future dangerousness was] almost entirely unreliable [or] that the factfinder and the adversary system w[ould] not be competent to uncover, recognize, and take due account of its shortcomings,” particularly because there was no suggestion “that psychiatrists [we]re always wrong with respect to future dangerousness, only [that they were] most of the time.” Id. at 899, 103 S.Ct. 3383 (emphasis added).

In Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), the Supreme Court placed a condition on its holdings in Jurek and Barefoot.It held that, where the prosecution alleges future dangerousness against a defendant facing either death or life imprisonment without the possibility of parole, the Fourteenth Amendment Due Process Clause requires the trial court to apprise the jury that the only alternative to death is life imprisonment without parole. See Simmons, 512 U.S. at 164, 114 S.Ct. 2187. Crucially, however, the court noted that “[o]f course, the fact that a defendant is parole ineligible does not prevent the State from arguing that the defendant poses a future danger,” including “to others in prison.” Id. at 165 n. 5, 114 S.Ct. 2187.

To summarize these Supreme Court cases: a jury may constitutionally evaluate a defendant's future dangerousness as an aggravating factor weighing in favor of the death penalty, either on the basis of lay testimony ( Jurek ) or psychiatric testimony ( Barefoot ), but if the only alternative to the death penalty is life imprisonment without parole, the jury must be so informed ( Simmons ). Based on these and other precedents, federal courts “ ‘have uniformly upheld future dangerousness as a non-statutory aggravating factor in capital cases.’ ” United States v. Basciano, 763 F.Supp.2d 303, 352 (E.D.N.Y.2011) (quoting United States v. Bin Laden, 126 F.Supp.2d 290, 303 (S.D.N.Y.2001)).

Wilson argues that Jurek and Barefoot do not foreclose his argument because in those cases, the Texas statute at issue permitted a life sentence with the prospect of parole as an alternative to death, and thus the jury could take into account the probability that the defendant would commit acts of violence outside of prison. (Def. Mem. at 3.) In his case, by contrast, “the only alternative to a death sentence is life in prison without the possibility of release,” and so the jury would be limited to predicting “whether Mr. Wilson will commit serious acts of violence while incarcerated, for the rest of his life, in a maximum-security penitentiary managed by the Bureau of Prisons.” ( Id. at 9.) He argues that there is no reliable way to make this prediction.

In support of this argument, Wilson cites a number of empirical studies—published after Jurek and Barefoot—purportedly establishing both: (1) “the stunningly low [ ] rate of violence” for capital murderers in federal custody; and (2) “the inability of jurors and prosecutors to accurately predict the few who would engage in such misconduct.” (Def. Reply at 2; see, e.g., Def. Mem. at 5 (describing a 2004 study showing a 95% error rate in expert predictions...