U.S. v. Green, No. CRIM.02-10301-NG.
| Decision Date | 04 November 2004 |
| Docket Number | No. CRIM.02-10301-NG. |
| Citation | 343 F.Supp.2d 23 |
| Parties | UNITED STATES of America, v. Darryl GREEN, et al. Defendants. |
| Court | U.S. District Court — District of Massachusetts |
William C. Brennan, Jr., Brennan, Trainor, Billman & Bennett, LLP, Upper Marlboro, MD, Randolph M. Gioia, Law Office Of Randolph Gioia, Boston, MA, Sarah Jennings Hunt, Cambridge, MA, Jeffrey B. O'Toole, Washington, DC, for Darryl Green, Defendant.
Christie M. Charles, George F. Gormley, P.C., Boston, MA, for Jonathan Hart, Defendant.
John H. Cunha, Jr., Cunha & Holcomb, PC, Boston, for Edward Washington, Defendant.
Patricia Garin, Max D. Stern, Stern, Shapiro, Weissberg & Garin, Boston, MA, David P. Hoose, Katz, Sasson, Hoose & Turnbull, Springfield, MA, David J. Huss, Rapid City, SD, Melvin Norris, Mel Norris, Wayland, MA, for Branden Morris, Defendant.
Theodore B. Heinrich, United States Attorney's Office, Boston, MA, for USA, Plaintiff.
Wayne R Murphy, Murphy & Flaherty, Boston, for Torrance Green, Defendant.
Pretrial Services, U.S. Pretrial Services, Boston.
MEMORANDUM AND ORDER RE: BIFURCATION
On July 7, 2004, I issued a Memorandum and Order Re: Severance/Bifurcation of Guilt and Punishment. See United States v. Green, 324 F.Supp.2d 311 (D.Mass.2004). I noted that it was an open question as to whether the Court, sitting on a federal death penalty-eligible case (under 18 U.S.C. §§ 3591-3593), was obliged to impanel a single jury charged with determining both guilt and, if necessary, punishment, and death-qualify that group before either proceeding began. I proposed two methods to address the question, and called for additional briefing:
Method One involves impaneling a jury to hear the guilt phase in the usual way, without death-qualification, then picking the maximum number of alternates by law (already justified by the length of the trials even with two defendants). Should there be a conviction on Count Sixteen, the Court would then death-qualify the jurors from the first trial, including the alternates, to determine who is qualified to participate in the second trial. If there are not enough jurors to so qualify either Darryl Green in the first trial or Morris in the second, the Court would then discharge the guilt jury and impanel a new jury to hear punishment issues.
Method Two involves an order at the outset that for various case management reasons, the Court will impanel a different punishment jury if there is a conviction.
Both sides have now fully briefed the issue. As described below, the defendants have rejected Method One and have argued for adopting Method Two. The government opposes both methods.
After reviewing the materials and relevant case law, I conclude the following: I will impanel two different juries, if necessary, for each death-eligible defendant, one jury to determine guilt or innocence and the other to reject or to impose the death penalty. I will death-qualify the punishment jury only, should a penalty proceeding become necessary. As described more fully below, my reasons are as follows:
1. 18 U.S.C. § 3593 does not require two hearings before a single jury (described as a "unitary jury system"). This provision simply codified death-eligible defendants' constitutional right to a bifurcated hearing (on guilt/innocence and punishment), whether before a single jury (following a guilty verdict) or before a second jury. In any event, to the extent that § 3593 can be read to require a unitary jury, defendants waive that requirement.
2. I will accept the defendants' waiver of a unitary jury for both prudential reasons, as well as for reasons of fairness. As I noted in my memorandum on severance, see Green, 324 F.Supp.2d at 329, and as I describe more fully below, death-qualification, particularly in this Commonwealth at this time, will needlessly extend an already complicated jury selection process. And the effort will be completely unnecessary if the defendants are not convicted of the death-eligible offense.
3. While the Supreme Court has held that death-qualifying a unitary jury is not unconstitutional, neither has it held that the Constitution requires it. Put simply; just because death-qualifying the liability jury that may also hear the penalty phase does not offend a defendant's rights, does not mean its opposite: That the failure to death-qualify the liability jury (while death-qualifying the punishment jury) somehow undermines the government's rights.
4. Indeed, the government has no entitlement to a death-qualified guilt/innocence jury, or for that matter, to a unitary jury hearing both phases. It only has a right to death-qualify the jury that will determine punishment. See Witherspoon v. Illinois, 391 U.S. 510, 520, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).
5. The government's important concerns about the impartiality of the liability jury can be adequately addressed through voir dire, which, while not nearly as extensive as a voir dire that includes "death-qualification," will nevertheless be probing and exhaustive.
6. The government's important concerns about witnesses testifying in multiple proceedings can likewise be addressed by the Court. First, it is premature to assume that there will be a punishment phase, and thus, multiple proceedings for each defendant. Second, if there is a punishment phase, there are evidentiary techniques to relieve witnesses from having to appear a second time, techniques like videoconferencing, use of transcripts, stipulations, etc.
In choosing the two juries approach, I do not have to reach the constitutional question raised by defendants whether recent studies establish that death-qualifying the liability jury skews the decision-making process of the jury by making it more conviction prone and less representative. I make my decision based upon the defendants' waiver of rights under § 3593, concerns about trial length and complexity, and the unique problems of selecting a death-qualified jury in Massachusetts given its demographics and attitudes.
Count Sixteen of the superceding indictment in the above entitled case alleges that Branden Morris ("Morris") and Darryl Green1 killed Terrell Gethers ("Gethers") "for the purpose of maintaining and increasing position in the Enterprise, which was an Enterprise engaged in racketeering activity." See Superseding Indictment, filed September 17, 2003, p. 32. The government alleges that the "Racketeering Enterprise" element was met by the activities of the "Esmond Street Posse" (hereinafter "Esmond Street"). Esmond Street, it claims, was an enterprise whose goal was to engage in the sale of crack cocaine and marijuana, to seek to prevent others from interfering with their sales, and specifically, to carry on a violent dispute with a rival gang, the Franklin Hill Giants. That dispute allegedly led to a number of murders and attempted murders during a one year period in 2000 and 2001.2
There were multiple motions for severance from nearly every party, which I resolved. My goal in responding to the motions — like my goal in the instant motion — was to balance the substantial concerns of both sides. Accordingly, I made the following orders: Darryl Green and Jonathan Hart will be tried on January 10, 2005; Branden Morris and Edward Washington will be tried on April 11, 2005 (although I indicated that I would revisit their joinder following the completion of the Darryl Green/Hart trial). Torrance Green will be tried alone on July 11, 2005. In addition, I scheduled trial dates and set aside monthly hearings to expedite the proceedings. To date, the cases are progressing according to the schedule.
The issue before me principally concerns the conduct of the trials of the two death penalty defendants, Morris and Darryl Green. However, since the trial of each is joined with another defendant not facing the death penalty (Washington and Hart respectively), these issues in fact affect virtually all the defendants.
Should a penalty phase be necessary, there is no question that the government is entitled to death-qualify the punishment jury. Witherspoon, 391 U.S. at 520, 88 S.Ct. 1770. Specifically, the government may ask whether the venireman's views about the death penalty "would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) (internal quotations omitted); Witherspoon, 391 U.S. at 520, 88 S.Ct. 1770.
Since the usual practice is to have a guilt trial followed by a penalty trial before the same jury, the usual result is that the Court death-qualifies the guilt jury as well.3 Section 3593, for example, codifies this practice by providing that the capital hearing "shall be conducted — (1) before the jury that determined the defendant's guilt," or "before a jury impaneled for the purpose of the hearing if the jury that determined defendant's guilt was discharged for good cause." 18 U.S.C. § 3593(b).
But the usual practice of death-qualifying a single jury charged with hearing both liability and punishment is neither constitutionally nor statutorily required. It has simply evolved as a standard practice. Nothing prevents this Court from fashioning a different procedure more suited to the facts of this case, to the exigencies of the Court's calendar, and to the promotion of fairness to both sides.
Defendants' claims raise the following questions:
1) Does 18 U.S.C. § 3593 require that the guilt/innocence jury and the punishment jury be one and the same?
2) If the punishment jury must be "death-qualified," does it follow that the guilt/innocence jury also must be "death-qualified"?
3) Can the defendant waive rights under § 3593 over the government's objection?
4) If these rights can be waived, how can the government's interests be protected?
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U.S. v. Green
...jury determining liability and a second determining punishment. Only the punishment jury would be "death-qualified." United States v. Green, 343 F.Supp.2d 23 (D.Mass.2004), as amended, 348 F.Supp.2d 1 (D.Mass.2004). I made this decision as a matter of case management, to avoid the complex j......
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U.S. v. Green
...the scheduled trials (one to adjudicate guilt and the second, if needed, to fix the nature of the penalty). United States v. Green, 343 F.Supp.2d 23, 25 (D.Mass.2004) (Green II). The court determined that the applicable provision of the Federal Death Penalty Act, 18 U.S.C. § 3593(b), did no......
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...125 S.Ct. 1611, 161 L.Ed.2d 289 (2005), the district court relied instead on the decision to the contrary in United States v. Green (Green I), 343 F.Supp.2d 23, 30-32 (D.Mass.2004), a decision that was subsequently reversed by the First Circuit in United States v. Green (Green II), 407 F.3d......
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U.S. v. Young
...by means of a bifurcated trial, using one jury to decide guilt and another to fix punishment"); see also United States v. Green, 343 F.Supp.2d 23, 30-32 (D.Mass.2004) (citing The sentencing procedures for this case are contained in the Federal Death Penalty Act of 1994, 18 U.S.C. § 3593(b) ......