U.S. v. Gilbert, 98-CR-30044-MAP.

• Decision Date: 14 November 2000
• Docket Number: No. 98-CR-30044-MAP.,98-CR-30044-MAP.
• Citation: 120 F.Supp.2d 147
• Parties: UNITED STATES of America v. Kristen GILBERT
• Court: U.S. District Court — District of Massachusetts

120 F.Supp.2d 147

UNITED STATES of America v. Kristen GILBERT

No. 98-CR-30044-MAP.

United States District Court, D. Massachusetts.

November 14, 2000.

David P. Hoose, Katz, Sasson & Hoose, Springfield, MA, Harry L. Miles, Green, Miles, Lipton, White & Fitz-Gibbon, Northampton, MA, Paul S. Weinberg, Robinson, Donovan, Madden & Barry, Springfield, MA, for Kristen Gilbert.

Michael Labrie, Labrie & Pouliot, Chicopee, MA, David M. Allen, James L. Komie, Schuyler, Roche & Zwirner, Chicago, IL, for Joint Commission on Accreditation of Healthcare Organizations.

Joseph P. Pessolano, Kelly, Pessolano, Dusel & Murphy, Springfield, MA, for Republican Co. William M. Welch, II, Ariane D. Vuono, United States Attorney's Office, Springfield, MA, for U.S.

MEMORANDUM AND ORDER REGARDING DEFENDANT'S MOTION TO STRIKE NONSTATUTORY AGGRAVATING FACTORS

(Docket No. 210)

PONSOR, District Judge.

I. INTRODUCTION

Defendant Kristen Gilbert has been indicted on four counts of murder, three counts of attempted murder and six counts of assault with intent to murder, all alleged to have been committed upon patients while she was a nurse at the Veterans Affairs Medical Center (VAMC) in Northampton, Massachusetts. The Government has filed a notice of its intent to seek the death penalty if defendant is convicted of any of the four murder counts. See Memorandum in Support of Defendant's Motion to Strike, Docket No. 211, Exhibit A (Government's Notice). In its Notice, the United States listed the statutory and nonstatutory aggravating factors that it wishes to present to the jury in support of a death sentence.

Defendant has moved to strike portions of the four nonstatutory aggravating factors the Government proposes to offer to the jury as justification for the death penalty, if the trial reaches that stage. Specifically, she objects to portions of Factor 2, entitled "Other, charged and uncharged, acts of violence and other offenses," which has six sub-paragraphs, and Factor 3, entitled "Future dangerousness of the defendant," which now has seven sub-paragraphs.¹ For the reasons set forth below, the court will allow defendant's motion in part, and strike all the challenged nonstatutory aggravating factors except those listed in sub-paragraphs 2c, 2d, and 2f, as to which the motion is denied. Put simply, the stricken factors lack sufficient gravity, reliability, or probative value to deserve consideration during deliberations on the death penalty, if the jury reaches the question.

II. DISCUSSION

Defendant's motion presents a profound question: what may a jury consider in deciding whether a capital defendant should live or die? Congress has not provided specific guidelines for the admissibility of such evidence. Rather, it has entrusted trial judges both with substantial responsibility and with broad discretion to act as guardians of the sentencing process. The courts must ensure that the evidence presented to the jury in capital sentencing hearings is truly worthy of consideration in a decision as grave as this.

The discussion that follows will first explain the general structure of the sentencing process in a capital case, and the considerations that inform it, then address the proposed nonstatutory aggravating factors challenged by the defendant.

A. The Penalty Phase in General.

The nonstatutory aggravating factors before the court today contain some of the last pieces of evidence that may appear before the jury in this case. As required by the Supreme Court, the Federal Death Penalty Act bifurcates capital trials into a guilt/innocence phase, which is just like any other murder trial, and a sentencing phase, in which the jury decides whether to impose a death sentence. See 18 U.S.C. § 3593(b); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). The nonstatutory aggravating factors become relevant in the sentencing phase, which the court reaches only if the defendant is found guilty of a capital count.

Within the sentencing phase, Congress has set up a two-part screening procedure that the jury must undertake before it may even consider the imposition of the death penalty on a capital murder defendant. First, the jury must unanimously find beyond a reasonable doubt that the defendant "intentionally killed the victim" or intentionally engaged in specific conduct that resulted in the death of the victim. See 18 U.S.C. § 3591(a)(2)(A)-(D). Second, the jury must unanimously find at least one of sixteen statutorily-prescribed aggravating factors to be present. See 18 U.S.C. § 3592(c)(1)-(16). These "statutory aggravating factors" were drawn up with some care; they consist only of conduct making the instant offense a great deal more culpable, or prior convictions for other serious crimes. See id. Three statutory aggravators are asserted here: the "heinous, cruel, or depraved manner" of the alleged murders, the "substantial planning and premeditation," behind them, and the "vulnerability" of the victims "due to old age ... or infirmity." See 18 U.S.C. § 3592(c)(6), (9), (11).

If both the intent element and at least one statutory aggravating factor are found by the jury unanimously and beyond a reasonable doubt, then the jury considers the "nonstatutory aggravating factors" offered by the Government. By statute, these factors may consist of victim impact testimony and "any other relevant information." 18 U.S.C. § 3593(a)(2). As with the statutory aggravating factors, the Government must prove the nonstatutory aggravators beyond a reasonable doubt. The jury must balance all the aggravating factors against any mitigating factors offered by the defendant and decide whether to impose the death penalty or life imprisonment without the possibility of parole.

B. Standard of Review.

Through interpretation of the Federal Death Penalty Act and the rulings of the U.S. Supreme Court, the federal courts have arrived at a three-part test to guide their discretion in evaluating nonstatutory aggravating factors. See United States v. Davis, 912 F.Supp. 938, 943 (E.D.La.1996). First, the information must be "relevant." Id. The provision on nonstatutory aggravating factors allows the introduction only of "relevant information" (of which the Government has given notice) that may tend to make the death penalty more appropriate. 18 U.S.C. § 3593(a)(2). Second, the information must meet the "heightened standard of reliability" the Supreme Court has required in death penalty cases. Ford v. Wainwright, 477 U.S. 399, 410-11, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986); see also Spaziano v. Florida, 468 U.S. 447, 456, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984). Finally, even if relevant and reliable, proposed aggravating factors may be excluded if their probative value is outweighed by the danger of unfair prejudice to the defendant, confusion of the issues, or a likelihood that the jury will be misled. See 18 U.S.C. § 3593(c).

1. Relevance.

For a nonstatutory aggravating factor to be "relevant" within the meaning of the statute, it must be "sufficiently relevant to the consideration of who should live and who should die." Davis, 912 F.Supp. at 943; see also United States v. Friend, 92 F.Supp.2d 534, 541 (E.D.Va. 2000); United States v. Peoples, 74 F.Supp.2d 930, 932 (W.D.Mo.1999). Congress could not have intended the word "relevant" to mean anything less, given the strong Constitutional policy favoring guided and measurable jury determinations on capital punishment. See generally Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). As the Supreme Court has held, aggravating factors in death penalty cases must be "particularly relevant to the sentencing decision," not merely relevant, in some generalized sense, to whether defendant might be considered a bad person. Gregg, 428 U.S. at 192, 96 S.Ct. 2909 (emphasis added).

2. Reliability.

The second factor a court must consider is the reliability of the information. The Supreme Court has emphasized that heightened reliability is crucial in capital sentencing hearings because of the uniquely grave consequences of a death verdict. See Ford v. Wainwright, 477 U.S. 399, 410-11, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986); Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (plurality opinion). Indeed, some information that might be admitted in a normal sentencing hearing will be insufficiently reliable for the jury to use in considering whether a defendant should be put to death. See Davis, 912 F.Supp. at 943.

3. Probative Value Versus Prejudice.

Finally, even if the proffered information is relevant and sufficiently reliable, it may still be excluded if its probative value "is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury." 18 U.S.C. § 3593(c). The balance of probative value and unfair prejudice must be weighed more carefully in a death penalty case than in normal cases. Under the statute, probative value need not be "substantially" outweighed by prejudice, as Fed.R.Evid. 403 generally requires. See id.

C. The Government's Nonstatutory Aggravating Factors

1. Factor 2—Other Offenses.

Defendant first attacks the Government's Factor 2, entitled "Other, charged and uncharged, acts of violence and other offenses," which has six sub-paragraphs.

Sub-paragraphs 2a through 2d allege four instances of uncharged violent criminal conduct by the defendant. Sub-paragraph 2e would introduce statistical evidence linking defendant's on-duty presence to patient deaths over the course of six years at the VAMC. In sub-paragraph 2f, the Government seeks to present the defendant's prior conviction for making a bomb threat to the VAMC at the time she was being investigated for patient deaths.

Defendant argues that evidence of uncharged criminal conduct may not be introduced as an aggravating factor, because admission of such evidence would violate...