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Sixth Circuit En Banc Corrects Rogue Panel Decision

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The US Courts of Appeals for the Sixth and Ninth Circuit, and to a somewhat lesser degree the Third, have a dismal record in the Supreme Court in capital cases.  In part, that has been because the full courts have insufficiently exercised their authority to correct outlier decisions by rogue panels.  When a decision is so blatantly wrong that the Supreme Court reverses summarily and unanimously, the en banc court of appeals didn't do its job.

But we are seeing some gradual improvement.  Yesterday, the Sixth Circuit en banc corrected a particularly wacko panel opinion in United States v. Gabrion, No. 02-1386.
Marvin Gabrion was scheduled to be tried in Michigan state court for a rape charge on June 5, 1997. But that trial never happened. Two days before the trial was set to begin, Gabrion abducted Rachel Timmerman--the 19-year-old woman he allegedly raped--and took her to a remote location in the Manistee National Forest, bound and gagged her and weighed her down with concrete blocks, put her in an old metal boat, and then threw her overboard, alive, into a shallow, weedy lake, where she drowned. Gabrion also abducted and killed Timmerman's infant daughter.

Timmerman's murder was a federal offense because it occurred in a National Forest. See 18 U.S.C. § 1111(b). A federal jury later convicted Gabrion of murder and recommended that he be sentenced to death. The district court sentenced him accordingly. Gabrion now challenges his conviction and sentence on numerous grounds. We reject all of his arguments, and affirm.

The Supreme Court held in Lockett v. Ohio (1978), that the defendant is entitled to have the jury consider "as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death."  The federal death penalty statute contains a catch-all provision on mitigation that tracks the language in Lockett: "Other factors in the defendant's background, record, or character or any other circumstance of the offense that mitigate against imposition of the death sentence."  18 U.S.C. §3592(a)(8).

So which of these is the fact that the Legislature of the State of Michigan has decided not to have the death penalty for murders committed in violation of Michigan law?  Is it the defendant's background?  Nope.  His record?  Nope.  His character.  Nope.  A circumstance of the offense?  Nope.

Congress has decided to have the death penalty for aggravated murders committed within federal jurisdiction.  Allowing a factor that has nothing whatever to do with the defendant's blameworthiness to be included in the sentencing decision would move the law in the wrong direction, toward arbitrariness.  There is no basis for accepting defendant's argument other than a raw desire to reduce the number of death sentences, no matter how badly the law needs to be twisted to achieve that end.

Now, a decent federalism argument could be made that national forests shouldn't be considered part of "the special maritime and territorial jurisdiction of the United States," and therefore state and not federal law should govern all crimes committed there.  But that is not the argument being made here.  The argument is a "death is different" one, and it can be made only by grossly extending the Supreme Court's already badly stretched Lockett rule.

Judge Moore's dissent also includes this whopper:  "At the end of the penalty phase, Gabrion sought to have the jury instructed in accordance with Apprendi v. New Jersey, 530 U.S. 466 (2000)--that in order to sentence Gabrion to death, the jury would have to find beyond a reasonable doubt that the aggravators outweighed the mitigators."

In accordance with ApprendiApprendi says nothing of the sort.  That decision applies to the factors by which the jury finds the defendant eligible for the penalty, not the process by which it exercises discretion whether to actually impose the penalty.

The Sixth Circuit vote was 10-2-4 (12-4 on the judgment).  This is an encouraging sign.

1 Comment

"When a decision is so blatantly wrong that the Supreme Court reverses summarily and unanimously, the en banc court of appeals didn't do its job"

A certain Judge Sutton disagrees . . . .

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