U.S. v. Davis

Decision Date11 March 2002
Docket NumberNo. 01-30656.,01-30656.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Len DAVIS, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Michael Edward McMahon, Asst. U.S. Atty., Stephen A. Higginson, Asst. U.S. Atty., New Orleans, LA, for Plaintiff-Appellee.

Julian R. Murray, Jr., Chehardy, Sherman, Ellis, Breslin & Murray, Metairie, LA, Carol A. Kolinchak, New Orleans, LA, for Defendant-Appellant.

Stephen I. Singer, New Orleans, LA, for National Ass'n of Criminal Defense Lawyers, Amicus Curiae.

Petition for Writ of Mandamus to the United States District Court for the Eastern District of Louisiana.

Before DeMOSS, PARKER and DENNIS, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

The Defendant-Petitioner, Len Davis ("Davis"), has filed a motion for clarification of this Court's previous writ of mandamus, or alternatively, for the issuance of a second writ of mandamus overturning the district court's decision to appoint an independent counsel to represent the public interest in the penalty phase proceeding of this capital case. For the following reasons, we issue the writ.

I. FACTS AND PROCEDURAL HISTORY

Davis was convicted of civil rights murder in violation of 18 U.S.C. §§ 241 and 242, and sentenced to death. On appeal, we upheld the conviction but reversed the death sentence and remanded for a new penalty trial. United States v. Causey, 185 F.3d 407 (5th Cir.1999). Upon remand, the district court appointed counsel to represent Davis. Davis announced to the court that he desired to represent himself during the penalty trial. He also took the position that he does not want to present traditional mitigating evidence during the penalty trial, but will focus instead on attacking the strength of the government's case as to guilt.

After holding a hearing pursuant to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the district court found that Davis's decision to represent himself was made knowingly and intelligently. However, the district court concluded that the Faretta right to self-representation does not extend to criminal sentencing, and even if it does, Davis's interests are outweighed by the Eighth Amendment requirement that the death penalty not be imposed arbitrarily and capriciously. Thus, the district court precluded Davis from representing himself and ordered standby counsel to assume full representation and prepare a full penalty phase defense. Davis sought a writ of mandamus in this Court compelling the district court to permit self-representation instead.

On July 17, 2001, this Court issued a writ of mandamus directing the district court to allow Davis to represent himself in the penalty phase of this capital case. We determined that Mr. Davis has a Sixth Amendment right to represent himself during the penalty trial as specified by the United States Supreme Court in Faretta, but we gave the district court the authority to appoint standby counsel. The case was then remanded back to the district court.

On August 30, 2001, the district court issued an order appointing Laurie White to serve as an independent counsel at the penalty phase of this case. According to the order, the independent counsel is to represent the "interest of the public" in having a full and fair penalty phase proceeding. This means that the independent counsel will present traditional mitigating factors in favor of Davis to the jury at the penalty trial.

On October 9, 2001, Davis moved the Court to clarify the July 17, 2001 mandamus order, or alternatively, to issue a second writ of mandamus to the district court overturning the appointment of an independent counsel. In the motion, Petitioner contends that the district court's appointment of an independent counsel "completely eviscerates his Faretta right to represent himself pro se." We agree. Therefore, we issue this second writ of mandamus.

II. DISCUSSION
A. The District Court's Rationale

In its Order and Reasons, the district court decided that the appointment of an independent counsel does not conflict with Davis's right to represent himself because Davis would still be allowed to present any evidence he desires. The district court stated that it would allow "Davis full rein in his penalty phase. He may voir dire jurors, make opening statements, question witnesses, call witnesses, introduce evidence, make objections and present a closing argument, all he desires to do or not do, within the appropriate procedural and evidentiary rules." However, the court found that allowing Davis "full rein" did not mean that he could silence "other potential voices in the courtroom" from presenting evidence they deemed to be helpful to the jury.

The district court justified its determination that Davis's Faretta rights are not undermined by the appointment of an independent counsel by opining that both the government and the trial judge play a role in the penalty trial that is similar to the role an independent counsel could play. The district court noted that (1) the government has an obligation to produce mitigating as well as exculpatory evidence to the fact finder if that serves the ends of justice; and (2) the trial judge may interpose questions to witnesses to elicit evidence that might otherwise not be presented. The district court reasoned that:

An independent counsel, clearly identified as not associated with Davis, could likewise present evidence and question witnesses, providing relevant information helpful to the jury's decision. Just as the government's obligation to disclose mitigation evidence and the Court's prerogative to question witnesses do not interfere with Davis's Faretta right, neither would the participation of this independent counsel.

B. The Sixth Amendment Violation

We find that the district court's decision to appoint an independent counsel violates Davis's Sixth Amendment right to self-representation. An individual's constitutional right to represent himself is one of great weight and considerable importance in our criminal justice system. This right certainly outweighs an individual judge's limited discretion to appoint amicus counsel when that appointment will yield a presentation to the jury that directly contradicts the approach undertaken by the defendant.1

1. Proper Role of the Trial Court

At the outset, we note that the district court has misconstrued its proper role in conducting the penalty trial by overstating the parameters within which a judge can question witnesses. Rule 614(b) of the Federal Rules of Evidence permits judges to question witnesses. A trial judge's questioning of witnesses is permissible if aimed at clarifying the evidence or managing the trial. United States v. Williams, 809 F.2d 1072, 1087 (5th Cir. 1987).

A judge's questioning, however, should never evince or appear to evince partiality to one side over the other. See U.S. v. Reyes, 227 F.3d 263, 265 (5th Cir. 2000) ("[t]he primary limitation on this judicial investigatory power is that it must be undertaken for the purposes of benefitting the jury in its understanding of the evidence, and the court may not appear to be partial"); U.S. v. Martin, 189 F.3d 547, 553 (7th Cir.1999) ("a judge's discretion to question witnesses is not unfettered. A judge cannot assume the role of an advocate for either side."); United States v. Tilghman, 134 F.3d 414, 416 (D.C.Cir.1998) (noting that trial judges must strive to preserve an appearance of impartiality and must err on the side of abstention from intervention). For example, a judge should not ask questions which indicate his belief or disbelief of witnesses. United States v. Wyatt, 442 F.2d 858, 859-61 (D.C.Cir.1971).

In our July 17, 2001 opinion, we noted that the district court may interpose questions to witnesses during the penalty trial. The district court construed this statement as an invitation "to elicit evidence that might otherwise not be presented." The district court further implied that it has the right to elicit evidence from witnesses in a manner similar to that of an independent counsel.

We disagree with the district court's understanding of our previous statement. The district court shall not interpose questions to witnesses during the penalty trial which demonstrate partiality to one side or one position. The district court's role in the penalty trial shall be one of judge, not advocate.

2. Absence of Statutory Authority or Case Law Authority

The district court provides no federal statutory authority for appointing an independent counsel to present mitigation evidence in the penalty phase of a capital case. Instead, the district court relied upon civil cases in which federal courts permitted amicus curiae to assist in the proceedings. We closely scrutinized the "amicus curiae" cases. None are remotely analogous to the situation in the instant case. Therefore, we deem these cases to be of limited precedential value.

In the reverse but analogous scenario, the federal courts have also addressed whether district judges have the power to appoint special prosecutors when the government elects not to prosecute. In Nathan v. Smith, 737 F.2d 1069 (D.C.Cir. 1984), the D.C. Circuit considered whether a district court had the authority to order the Attorney General of the United States to conduct a preliminary investigation pursuant to 28 U.S.C. § 592 of the Ethics in Government Act. The only purpose of the preliminary investigation was to enable a report to be made to the court concerning the need or lack thereof for the appointment of an independent counsel. The D.C. Circuit reversed the district court order which started the special prosecutor appointment process. Id.

In the Matter of An Application for Appointment of Independent Counsel, 596 F.Supp. 1465 (E.D.N.Y.1984), the district court determined that it had no authority to appoint independent counsel to prosecute a government informer for giving false evidence and false...

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