Index of Appellate Briefs by Topic
Passion, prejudice, arbitrariness review requires de novo analysis of factual sufficiency as opposed to legal sufficiency -- whether death disproportionate under all the circumstances
Sentence imposed under influence of passion, prejudice, arbitrariness
Weighing of improper aggravating factors
Coerced by government agents
Garza
Hall
Jones General and specific (for surprise government witness in penalty phase)
Right to 3005 counsel
Right to conflict-free counsel
“Color of law” -- what is necessary for 18 USC §§ 241 and 242
Conspiracy -- insufficient evidence of knowing membership
Conspiracy-- multiple conspiracies only one of which involved defendant
Conspiracy and CCE merged and should not both have been charged
Continuing series of “violations” in connection with CCE
“Engaged” in CCE-- use of murders not charged as part of "continuing” series of narcotics “violations,” yet allegedly committed “in furtherance” of CCE, to show “engaged” in CCE
“Engaged in racketeering activity”-- 18 USC § 1959
Kidnapping -- must accurately instruct on benefit sought by kidnapping
Nexus between murders and CCE
Notice of facts underlying charge
“Organize[d], supervise[d], or manage[d]” CCE
Punishment provision (18 USC § 848(e)(1)(A)) making death a punishment for offense already defined, does not support the charge of an offense
Purposeful connection between the killing and the continuing criminal enterprise (848) not charged
Territorial basis for jurisdiction questioned
Witness tampering -- 18 USC § 1512 & must be to prevent communication to federal officer
“Work in furtherance of” CCE-- insufficient evidence
Defendant’s statement not produced yet admitted when offered by government
Witness statements during debriefing
Post-trial discovery that government provided sexual “reward” for cooperating inmate witness
Hearsay statements admitted concerning identification of body
Other offenses and wrongful acts introduced by government (404(b) evidence)
Other offenses and wrongful acts -- of codefendants -- introduced by government
Other persons -- evidence of involvement in offense -- excluded
Photographs of evidence used in lieu of evidence itself, which was lost
Prejudice outweighs probative value
Davis (evidence of gun barrel not connected to defendant)
Hall (30 photographs of victim’s body; video of place she taken, as if she were walking there)
McVeigh (victim impact-type evidence in guilt phase)
Webster (10)
Webster (11) (same as Hall)Refusal of government witnesses to meet with defense-- questioning precluded
Tape recordings -- lay witnesses not party to conversation allowed to testify as to contents
Application of 18 USC § 848(e)(1)(A)
Elements -- failure to instruct on all
Elements -- unanimity as to each
Intent to kill as necessary element of use of weapon of mass destruction
Interstate commerce, effect on, as element of crime
Lesser included offense -- interstate commerce facilities used in murder for hire
Lesser included offense -- second degree murder
Lesser included offense for use of weapon of mass destruction
Malice
Reasonable doubt
Burden of proof as to weighing of aggravating and mitigating factors
Consequences of non-unanimity on death or life without the possibility of release (the “Jones” instructional issue) -- court did not instruct
Death, by unanimous vote, as only sentencing choice
Failure to inform jury that life without release was alternative sentence to death
Mental health mitigation cannot be treated as aggravation
Mitigating factors established by the evidence not instructed
Unanimity required for sentence other than death under 848
Failure to require production of government’s experts’ former testimony
Eliciting testimony favorable to prosecution which prosecutor failed to elicit
Automatic death penalty juror not excused
Automatic finding of felony/killing aggravating circumstance upon conviction of kidnapping during which death occurred -- juror not excused
Conclusion that defendant guilty and that he would have to produce evidence to dissuade juror
Improper exclusion under Witherspoon/Witt
Law enforcement connections
Law enforcement officers
Personalizing death of victim to juror’s daughter
Pretrial publicity
Victim connections
Jurors -- prosecutors use of peremptory strikes
African American juror
Female juror
Lists derived from only registered voters who actually vote
Underrepresentative of African Americans
Juror lied on questionnaire-- failure to make inquiry before excusing
Media reports during trial
Premature deliberations
Alternate juror, who did not deliberate in guilt phase, deliberated in penalty phase
Individual voir dire denied
Judicial questioning biased toward death-- use of leading questions to qualify pro-death jurors and to disqualify pro-life jurors
Out of presence of defendant voir dire
Racial bias inquiries limited
Rejection for cause without voir dire examination
Restricting inquiry into ability to consider aggravating factors
Restricting inquiry into ability to consider mitigating factors
Restricting inquiry into bias toward death sentence in particular case
Restricting topics and/or time of voir dire
Sentencing options-- all not known at time of voir dire
Court’s ruling that defendant not mentally retarded contradicted by the evidence
Method of execution unconstitutional
Lethal injection
Mitigating circumstances and evidence
Exclusion of evidence -- that others were involved in the offense
Exclusion of evidence -- government responsibility for deaths at Waco which produced rage that government alleged provided motive for offense
Findings -- absence of findings precludes meaningful appellate review
Findings -- mitigating factor found by one juror must be weighed by all jurors
Findings -- failure to find despite uncontradicted support in the evidence
Preclusion of consideration of mitigating circumstances by failing to inform jury that life without release was alternative sentence to death
Non-statutory aggravating circumstances
Commission of the charged offenses
Criminal history of defendant
Delegation of authority to define aggravating circumstances
Future dangerousness
Davis (insufficiency of evidence)
Intent to kill (under 3591)
Rehabilitation failure
Statute -- 3591 (as distinct from 848(h)(1)(B)) -- permits no nonstatutory aggravating circumstances other than victim-impact
Unadjudicated offenses
Use of a deadly weapon
Victim impact
Applies in every death case -- cannot be aggravating
Duplicative and overlapping factors
Evidence insufficient
Hearsay -- filled-out victim impact questionnaires
Unduly inflammatory evidence admitted
Vagueness of the circumstance as instructed
Mid-trial, created by judge’s comments out of the jury’s presence
Pretrial
Denial of motion to change venue, motion for sequestered jury, and motion for additional strikes based on pretrial publicity
Codefendants of equal culpability -- withdrawing death notice on second after first defendant’s trial
Closing argument -- comment on defendant not testifying
Closing argument -- culpability of defendant inflated beyond evidence in penalty phase
Closing argument -- facts not established
Closing argument -- no mercy for defendant (penalty phase)
Closing argument -- shifting responsibility for imposition of death sentence from jury
Discoverable information withheld
Inflammatory evidence emphasized and overstated
Jones (sexual predator)
Objections by prosecutor during defense closing argument unwarranted and disruptive
Prison conditions easy
Psychiatric examination of defendant by government expert
Compulsion of defendant to cooperate-- conditioning admission of defense evidence on cooperation of defendant with government mental health expert
Limitations to secure 5th Amendment rights
Notice required of defendant concerning penalty phase mental health-based evidence
Psychopathy Checklist-Revised (PCL-R)
Unreliability of expert testimony derived from PCL-R and of PCL-R itself (Daubert challenge)
Discovery -- denial
Absence of defendant during penalty phase
Davis (voluntary; court should not have allowed)
McCullah (involuntary)Allocution by defendant at penalty phase
Deliberations allowed before mitigation case heard
Discovery denial
Duplication permitted under instructions given
Incorporation of guilt phase evidence made defendant liable for others’ misconduct
Individualized -- no party liability in sentencing -- only defendant’s conduct
“Substantial planning” aggravating circumstance focused on the mental state for the kidnapping not on the homicide
New aggravating factor submitted after defense closing
Notice requirement not satisfied
Proportionality review not required
Rebuttal denied in relation to government rebuttal of mitigation evidence
Barnette (evidence derived from PCL-R)
Jones (government SPECT scan of defendant)
Webster (defendant's mental retardation)Relaxed evidentiary standard in penalty phase
Unreliability -- combination of lesser evidentiary standards and nonstatutory aggravating factors
Jury
Codefendants
Penalty phase
Statutory aggravating circumstances
Especially heinous, cruel or depraved
Felony during which murder occurred (3592(c)(1))
Grave risk of death to others
Intent to kill or harm (under 848)
Intent to kill or harm (under 3591)
Pecuniary gain
Substantial planning and premeditation
Garza
Hardy
McCullah
Roane (instructional defects)
Roane (insufficient evidence)
Denial of motion to dismiss, where offenses occurred in another district
Change of venue denied
Violation of consular notice provisions
Meaning of “intimate partners” under the act
Deals with witnesses in exchange for testimony, violating federal bribery statute
Failure of government to provide complete list of witnesses before trial (18 USC § 3432)
Interference with access to witnesses