May 31, 2013

"Is Murder in a State Without the Death Penalty a Mitigating Factor in a Federal Death Penalty Case?"

A 6th Circuit panel had said yes, in a case where a man was convicted — under federal law, in federal court — of a murder in a  national forest in Michigan.

From the opinion (PDF):
The question is whether the fact of the location of the body so close to a line that forbids the death penalty...
The body was located only 227 feet within the boundary of the national forest.
...  allows counsel to try to convince one or more jurors that imposing the death penalty in these circumstances would treat life or death in a random and arbitrary way based on chance. The phrase “any mitigating factor” plainly includes information about Michigan’s policy against the death penalty and an argument based on the absence of proportionality in punishment when life or death is made to turn on chance and the lives of other equally guilty psychopaths are spared...
 ADDED: En banc, the 6th circuit voted 12-4 to reverse. 

56 comments:

Nathan Alexander said...

That's nothing.
I know modern feminists who, when they hear a friend is pregnant, wait until the pregnant friend decides whether she wants to have a baby or not before being able to congratulate her for becoming a mother or agree that it is just a parasitic lump of cells that can be removed like taking off a shirt.

traditionalguy said...

OK, how close to a border does a killer need to kill his victims to know that he is safe?

In the world of GPS that is data on everyone's cell phone.

I would suggest that a curtilage area within a five mile radius of Federal Judges' homes be declared a free fire zone as well...under the taxing powers or whatever makes them feel good powers.

edutcher said...

How far inside ought to be irrelevant, IMHO.

Don't the Feds get to go by their rules (assuming there's a Federal law against murder on Federal property and the defendant can get the death penalty for it) if a murder happens on their land?

MayBee said...

I think it has to do with the baby. They really hoped to find her alive, and may yet believe she lives.

They want to punish him for not telling them about that away.

Synova said...

I would think that's a bad precedence. What if someone is murdered 50 feet on one side of a state line?

Lance said...

Nullification by any other name smells just as sweet.

MayBee said...

Not telling them about the baby.

Smilin' Jack said...

The question is whether the fact of the location of the body so close to a line that forbids the death penalty...
The body was located only 227 feet within the boundary of the national forest.

... allows counsel to try to convince one or more jurors that imposing the death penalty in these circumstances would treat life or death in a random and arbitrary way based on chance.


Well, of course. At 228 feet it would be a completely different story. Nothing arbitrary about that.

Lance said...

What if someone's murdered 226 feet just outside a national forest. Can the jury consider the death penalty in that case?

john said...

So if I understand it right, the murderer would not have committed a federally defined crime if he had wacked Rachel a few hundred feet away.

Then he would have only committed two felonies that day, instead of three.

But what if he killed her on state land and threw her body in a river that carried it onto federal land?

Or vice versa?

Aridog said...

More judges making law not administering the law as written. When you ignore or fail to enforce a law you effectively eliminate it.

This case is all the more heinous because the murder was committed to prevent direct testimony by the victim...who was raped by the murderer.

Patrick said...

Even thought I think the argument is goofy, I certainly think the defense ought to be allowed to make it.

Mary Beth said...

He chose to kill her there. That's not random chance, it was his choice. He chose poorly.

Dante said...


What happens when a pilot tries to land a 747 a couple hundred feet from the runway.

What happens when you try to kill someone but miss with the bullet?

What happens when you walk a few feet too many over the ledge?

I think the answer is "Life ain't always fair."

Mary Beth said...

If a property line/border/boundary isn't "the line" what is? 300 feet? A mile? Less if it's rough terrain?

That seems more arbitrary to me.

Ann Althouse said...

When I wrecked my car on University Avenue headed west, the cop that wrote ticket for me told me that if I'de been at the same intersection but headed east, the ticket would have been for twice as much.

One side of the street was Shorewood Hills and the other side of the street was Madison.

But what if life or death was at stake?

The point in the 6th Circuit case is that the standard for what evidence must be admitted at the sentencing hearing is relatively low, and the defense might have been able to convince a juror to relent and say no death penalty because of this fact.

It's just about whether the evidence would come in, not about what the jury must do with it. He'd probably still get the death penalty.

MrCharlie2 said...

So, shouldn't the question be whether the case should be in federal or state court?

Bryan C said...

It's certainly an interesting assertion of state's rights. Could lead to interesting results.

But since we're totally not being arbitrary, it follows that the reverse would also be true. Which, given who is in charge now, would be more likely.

Lem said...

Reading this caused me to look up the neighborhood play.

The traditional application of the neighborhood play for an out developed because it is common for a sliding runner to collide with the fielder at second base, sometimes causing injury...

For the sake of safety, umpires allowed fielders to score the first out of an attempted double play without actually touching second base as long as it "looked like" an out, i.e. the fielder made a clean catch, turn, and throw near second base before the runner arrived. This allowed the tradition of the take-out slide to continue while still providing a means of safety for middle infielders.


The question is, does the 'neighborhood play' translate into a quasi legal argument... or at least approach the neighborhood.

Dante said...

It's just about whether the evidence would come in, not about what the jury must do with it. He'd probably still get the death penalty.

Your title says it's more than "just" (sorry for seeming harassing, I think you are great, I really do, and love your stuff, but sometimes it's hard to pin down what you are actually trying to convey):

""Is Murder in a State Without the Death Penalty a Mitigating Factor in a Federal Death Penalty Case?""

Michelle Dulak Thomson said...

Lance,

What if someone's murdered 226 feet just outside a national forest. Can the jury consider the death penalty in that case?

Good one. I don't think anyone raised that question in the thread on this at Volokh. All the same, I don't think it works. You don't get to use this sort of line to talk punishments up, only down. And there are good reasons for that.

I did ask, at Volokh, whether the same argument would go for a murder very near the border between a DP state and a non-DP state. The consensus seemed to be that it would, but that it was less fraught, because everyone understands that different states have different laws, but not everyone understands that Federal law controls in a national forest. At issue here was that the defense wasn't allowed even to make the argument.

Then again, it couldn't've happened to a more appropriate guy, IMO.

Aridog said...

Althouse said ...

It's just about whether the evidence would come in, not about what the jury must do with it. He'd probably still get the death penalty.

Thanks. I think I misread or misunderstood the ruling.

tim maguire said...

Does it work the other way? Would killing someone 227 feet outside of federal lands allow the judge to consider the death penalty? It being so close to a capital punishment area and all.

Perhaps we should smear all our jurisdictional boundries, make tham shades of grey. Close enough/far enough. Black and white being for mouth breathers and all.

elkh1 said...

edutcher said...
How far inside ought to be irrelevant, IMHO.

227 feet is relevant. If you kill at 300 feet which is only 73 feet from 227 which makes the imposing of the death penalty even more random and more arbitrary. If you kill at 500 feet, that will be 200 feet from 300 feet, that is less than 227, still random and arbitrary... 600 feet is only 100 feet from 500, ways too arbitrary...

So psychopaths: do your psychopathic killings in blue states. With or without the death penalty, blue staters will make excuses for you better than you ever could for yourself. Don't ever ever do the Texans. They are mean, they may even shoot you and claim self defense.

Paul Zrimsek said...

You begin to see why they're challenging the 9th Circuit for the Supreme Court reversal crown.

Lem said...

@Dante

Read the story she linked to.

Rabel said...

What am I missing? This was overturned and the death penalty affirmed by the full court.

Ann Althouse said...

"Your title says it's more than "just" (sorry for seeming harassing, I think you are great, I really do, and love your stuff, but sometimes it's hard to pin down what you are actually trying to convey)."

If it's a "mitigating factor" that means -- just means -- that the judge has to let the defense present evidence at the sentencing hearing. The prosecution is pressing the aggravating factors. It's a hearing on whether the death penalty will be imposed, which the jury gets to decide.

The title is a quote, the title over at Volokh.

I do assume some understanding of the death penalty process.

Any post makes many assumptions about what you can understand from the post alone.

For example, I don't define every word.

X said...

In Texas you have the opposite situation where the Feds are keeping Major Hasan from facing a Texas jury and certain execution. Texas would have him sitting on Death Row by now.

Ann Althouse said...

"What am I missing? This was overturned and the death penalty affirmed by the full court."

That is true. I've updated the post to show that.

bpm4532 said...

Do these judges even understand the law, or is it just about how they feel at a given moment?


Perhaps the IRS will accept that because I live next door to a church, I don't owe taxes!

Sheesh.

Lem said...

For example, I don't define every word.

Please don't, I know what "is" is.

bpm4532 said...

Ann, I think we're mostly commenting on the first court. Why do to they get an exemption on knowledge of the law and common sense?

Lem said...

Look people... Althouse doesn't have to be perfect... she just needs to be in the neighborhood.

Susan Stewart Rich said...
This comment has been removed by the author.
John Burgess said...

I don't get this. If the body had been found in Indiana (and presumably the murder committed there), MI law wouldn't apply nor would MI care what Indiana law said.

Lem said...

With all the talk of murder, penalty and death in this post, my brilliant 'neighborhood' comment doesn't stand a chance.

Zeb Quinn said...

It's a little like the Florida high school lesbian jailbait case, where the raper is just past 18, and it just isn't fair to treat her as if she is.

Gives the saying "close enough for government work" a new context.

Ambrose said...

I read a study once - can't find it now, so you will have to trust me - that looked at a a number of aggravated assaults and murders, and found the only real difference was the proximity of the crime scene to a hospital. Vastly different sentences (5-10 years vs. life/death penalty) depending on whether or not your victum could get to a hospital and live after you kicked the s*** out of him.

Methadras said...

Until boundaries as a matter of logic become arbitrary then the distance within that boundary when the crime was committed or where the body was found is irrelevant.

Revenant said...

I wish the courts were this vigilant about defending rights people are ACTUALLY supposed to have, like "property", "association", or "speech"

Methadras said...

Mary Beth said...

He chose to kill her there. That's not random chance, it was his choice. He chose poorly.


Unless the defense makes the argument that the feds must now delineate their borders somehow so that people can see it before deciding to commit a crime on state or federal lands.

Lem said...

What happens if the killing is near Mexico, which has no death penalty and no border with the US?

Pogo said...

#ReasonsToHateLawyers

Rabel said...

Ambrose,

Is this the study you referenced?

Third Coast said...

This guy deserves to die no matter where the murder occurred. In addition to the woman he raped and murdered (he threw her bound and gagged into the lake while she was still alive), he likely also murdered three other men who could've fingered him for the crime as well as the woman's daughter. Pure evil personified.

gbarto said...

If the guy committed the crime on federal land in a federal jurisdiction, he's subject to federal law. That said, the last time I was called for jury duty, the guy was being tried in federal court specifically so they could go for all the federal enhancements. I would be less sympathetic to this guy's arguments if the federal government were less inclined to get involved in cases that could be handled at the state level.

cubanbob said...

Close but no cigar. I wonder if the Supreme Court will take this case and if it does will it override an en banc ruling. Some choice. Forever in a Federal Supermax or the needle. Now someone hand me a box of Kleenex while I cry my eyes out.

cubanbob said...

Close but no cigar. I wonder if the Supreme Court will take this case and if it does will it override an en banc ruling. Some choice. Forever in a Federal Supermax or the needle. Now someone hand me a box of Kleenex while I cry my eyes out.

Dante said...

"For example, I don't define every word."

OK, snark. Fine. I dish it out from time to time too.

It looks like your definition of "Mitigating factor" is different than Wikipedia's (Wikipedia's is what I would assume a mitigating factor would be):

"A mitigating factor, in law, is any information or evidence presented to the court regarding the defendant or the circumstances of the crime that might result in reduced charges or a lesser sentence."

Your definition:

"If it's a "mitigating factor" that means -- just means -- that the judge has to let the defense present evidence at the sentencing hearing. "

So the whole point of expressing it is to reduce the punishment, in this case. In any event, it isn't a mitigating factor. Good thing, because I could definitely see it swaying a jury.

Lem: I read it again, a bit more carefully.

Big Mike said...

Isn't the woman and her daughter just as dead whether or not Michigan is a death penalty state? If the guy wouldn't have been eligible for the death penalty by killing the woman and her child in a different spot, isn't that just too bad. He chose the spot he chose and he has to live -- make that "die" -- with the consequences.

I think there are 12 morons on that appellate court.

SteveBrooklineMA said...

I think the Boston bomber will eventually be charged with a capital crime by the Feds. Yet he committed the crime, essentially murder, in a no-death-penalty state. I doubt there will be much objection in this case, but there have been others where I was surprised that death penalty opponents didn't raise a stink about it.

SteveBrooklineMA said...

This is Massachusetts case that I had in mind:

http://en.wikipedia.org/wiki/Gary_Lee_Sampson

This guy murdered three people in MA. But since he also "carjacked" he was eligible for a capital Federal case.

It seems to me that the state should be deciding what to do with this guy.

ironrailsironweights said...

It's a little like the Florida high school lesbian jailbait case, where the raper is just past 18, and it just isn't fair to treat her as if she is.

It wasn't a matter of being "just past 18." Kaitlyn Hunt turned 18 on August 14, 2012. Her relationship with the 14-year-old began* sometime in November 2012, at which time Hunt was about 18 years and three months old, and continued until shortly before Hunt's arrest on February 16, 2013, when Hunt was 18 years six months.

* = it began when Hunt finger-f*cked the 14-year-old in a toilet stall. How romantic.

Peter

Richard Dolan said...

The 'close to the border' argument is, on any measure, ridiculous but it is the kind of argument that arises under theSCOTUS' endlessly proceduralized 'death penalty' jurisprudence. The argument is ridiculous because every place is close to some border, and adjoining jurisdictions often adopt different public policies. Quite apart from arguments about how close is close enough, allowing the argument invites one or more jurors to reject the applicable law because they prefer the policy of an adjoining jurisdiction.

Creative, but very bizarre. The SCOTUS has spent 40 years trying to use the 8th and 14th Amendments to mandate a host of procedures, all in search of that heavenly spot perfectly balanced between the extremes of a mandatory and a discretionary application of the death penalty. Only a true believer would deem it a success. Most just see an ever increasing mess, having essentially no textual basis in the constitution. The only common thread is that the result tends to be whatever the Kennedt/O'Connor swing vote thinks is fair.

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