Jorge Torrez Defense Trifurcate Motion

8/2/2019 Jorge Torrez Defense Trifurcate Motion

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IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINAAlexandria Division

UNITED STATES OF AMERICA )

) Criminal No.: 1:11-cr-115v. )

) The Hon. Liam O’GradyJORGE AVILA TORREZ, )

) Hearing: June 1, 2012

Defendant. ))

MOTION TO TRIFURCATE JURY DELIBERATIONS

NOW COMES Jorge Avila Torrez, by and through undersigned counsel, and

pursuant to 18 U.S.C. § 3593(c), and the Fifth, Sixth, and Eighth Amendments,

respectfully requests that this Court enter an order trifurcating the jury’s consideration

of this case.1

In support of this Motion, Defendant states the following.

INTRODUCTION

Following a practice that took hold after the Supreme Court approved bifurcated

proceedings in Gregg v. Georgia, 428 U.S. 153 (1976) (plurality opinion), federal death

penalty cases generally proceeded with bifurcated jury deliberations. The FDPA

contemplates such bifurcation in 18 U.S.C. § 3593(b). In the first phase of a bifurcated

proceeding, jurors deliberate on whether the Government has proven the offense[s]

charged in the indictment beyond a reasonable doubt. This is commonly known as the

guilt/innocence phase. In the second phase, the jurors deliberate on the mental state

1This motion assumes that the Court has found the FDPA facially constitutional, and

that the Court may adopt procedures not set forth in the statute to accommodate therequirements of Ring v. Arizona, 584 U.S. 584 (2002), see Motion to Declare the Federal

Death Penalty Act Unconstitutional. By seeking alternative relief, Mr. Torrez does not

concede the FDPA’s constitutionality or speak to the Court’s ability to impose additionalrequirements.

Case 1:11-cr-00115-LO Document 68 Filed 04/30/12 Page 1 of 12 PageID# 222



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factors set forth at 18 U.S.C. § 3591(a)(2), the statutory aggravating factors, the

nonstatutory aggravating factors, and the mitigating factors. If the jury finds a mental state

and one statutory aggravating factor[s], then it weighs the various factors to determine if

the penalty should be death, life without the possibility of release, or some other sentence.

This second phase is commonly referred to as the penalty phase. The Federal Rules of

Evidence do not apply at the penalty phase. Instead, 18 U.S.C. § 3593(c) permits the

parties to present relevant “information.” Such information may be excluded “if its

probative value is outweighed by the danger of creating unfair prejudice, confusing the

issues, or misleading the jury.” Id.

The Supreme Court's decision in Ring v. Arizona, 536 U.S. 584 (2002), raises

serious questions about the constitutionality of conducting a unitary sentencing hearing

where the jury makes its “eligibility” decision (which under Ring should now have all the

trappings of a guilt/innocence trial), and its “selection” decision in a single deliberative

process.

To the extent that FDPA's single sentencing hearing provisions survive

constitutional challenge under Ring, the Court should nonetheless structure the jury’s

deliberations so as to avoid the myriad problems associated with admitting information on

one issue, such as a nonstatutory aggravating factor like victim impact, that is not relevant

on another issue, such as a statutory aggravating factor related to the circumstances of the

offense. Numerous courts have ordered trifurcated proceedings for these reasons. See,

e.g., United States v. Moussaoui, 591 F.3d 263, 301 (4th

Cir 2010) (discussing bifurcation

of penalty phase following guilty plea into threshold eligibility and death selection

phases); United States v. Hager , 530 F.Supp.2d 778, 781 (E.D.Va. 2008) (noting




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trifurcation of trial phases); see also United States v. Natson, 444 F.Supp.2d 1296, 1309

(M.D. Ga. 2006) United States v. Johnson, 362 F.Supp.2d 1043 (N.D. Iowa 2005). In the

first phase of a trifurcated proceeding, the “merits” phase, the jury deliberates on the

defendant’s guilt or innocence of the charged offenses. In the second phase, the

“eligibility” phase, the jury determines whether the Government has proven the mental

state factors and the statutory aggravating factors beyond a reasonable doubt. In the third

phase, the “penalty” or “selection” phase, the jury decides on the nonstatutory aggravating

factors and the mitigating factors, undertakes the process of weighing, and determines the

sentence.

I. TO BE CONSTITUTIONAL UNDER RING V. ARIZONA,

PROCEEDINGS UNDER THE FEDERAL DEATH PENALTY ACT

MUST NOW BE TRIFURCATED.

It is now clear that statutory aggravating factors and the intent requirements of 18

U.S.C. § 3592 are elements of a charged capital offense because those factors serve to

raise the lawful maximum penalty from life imprisonment to death. Ring v. Arizona, 536

U.S. 584, 589 (2002); see also United States v. Allen, 406 F.3d 940, 943 (8th Cir. 2005);

United States v. Robinson, 367 F.3d 278, 284 (5th Cir. 2004); United States v. Higgs, 353

F.3d 281, 299 (4th Cir. 2003); United States v. Quinones, 313 F.3d 49, 53 n.1 (2d Cir.

2002). In light of Ring, and to properly meet the requirements of the Fifth, Sixth and

Eighth Amendments, proceedings under the FDPA must now be trifurcated.

Absent a trifurcated capital proceeding under the FDPA, a defendant is forced to

have a jury decide whether the Government has proven the remaining elements of a

capital offense, i.e., the defendant’s eligibility for the death penalty, at the same

proceeding where the jury ultimately decides whether to in fact impose such a




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punishment. By allowing the jury’s determination regarding death eligibility under the

FDPA to be potentially tainted by evidence that relates to nonstatutory aggravating factors

and the process of weighing the aggravating and mitigating factors, the FDPA

commingles two fundamentally different decisions which, under Ring and the

Constitution, must be kept separate: (1) whether the Government has proven all elements

of a capital offense beyond a reasonable doubt; and (2) if so, whether death or life without

the possibility of release is the appropriate sentence.

As Ring held, a jury’s decision regarding the presence of a statutory aggravating

factor and the presence of the requisite mental state each involve a determination as to

an essential element of the charged capital offense. Such determinations must be made

in a proceeding that occurs after the trial on guilt/innocence, but before, and separate

from the proceeding where the jury ultimately decides whether to impose the death

sentence. Any less of a procedure violates the defendants’ Fifth Amendment right to

enter the “eligibility” phase cloaked in the presumption that they are innocent of the

death penalty – a difficult presumption to maintain in the context of a capital case.2

It

also violates the defendant's rights to procedural due process under the Fifth Amendment

and his rights to trial by jury and confrontation under the Sixth Amendment. The

presumption of innocence is a basic tenet of American law, Estelle v. W illiams, 425 U.S.

501, 503 (1976), which "lies at the foundation of the administration of our criminal law."

2 See Jesse Nason, Mandatory Voir Questions in Capital Cases: A Potential Solution tothe Biases of Death Qualification, 10 Roger Williams U. L. Rev 211, 219 (2004)

(summarizing research on how death-qualified jurors may presume guilt, resolve

ambiguities against the defendant, more readily accept the government’s version of theevents, distrust defense witnesses, fill evidentiary gaps with their beliefs that defendant

committed the crime, and were more likely to infer premeditation). See also United

States v. Green, 324 F.Supp.2d 311, 329 (D.Mass 2004) (citing studies that raise problemwith whether death-qualified juries are more conviction prone).




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Coffin v. United States, 156 U.S. 432, 453 (1895); accord In re Winship, 397 U.S. 358

(1976). Under the presumption of innocence, a defendant is presumed innocent until the

prosecution proves all elements of the offense beyond a reasonable doubt. A wide

variety of procedures are designed to protect the presumption of innocence, hold the

Government to its burden of proof, and otherwise ensure a fair trial. Chief among these

are procedures governing the admissibility of evidence. Testimony, exhibits, and other

evidence not relevant to an element of the offense is inadmissible.

Now that “eligibility” factors are functional equivalents of an element of the

offense, Ring, 536 U.S. at 609, the court and the jury presume the defendant innocent of

those elements unless the Government has proven them to the jury beyond a reasonable

doubt. See Apprendi v. New Jersey, 530 U.S. 466 (2000) (state must prove very element

that distinguishes lesser from greater crime). A unitary capital sentencing proceeding,

however, does not afford the kinds of procedural protections designed to protect the

presumption of innocence. In a unitary sentencing proceeding, the jury is permitted to

hear a wide variety of information on matters not relevant to the mental state and

statutory aggravating factors (the elements), such as victim impact, an unrelated,

uncharged murder, and a host of other information about the nature and circumstances of

the offense and the defendant. Such information would rarely, if ever, be admissible in a

trial-like proceeding designed to afford the defendant the full panoply of procedural

protections commonly associated with the Fifth and Sixth Amendments. SeeWilliams v.

New Y or k , 337 U.S. 241, 246 (1949) ("[t]ribunals passing on the guilt of a defendant have

been hedged in by strict evidentiary procedural limitations"); Huddleston v. Unit ed States,

485 U.S. 681, 686 (1988) (extrinsic acts generally inadmissible unless relevant to motive,




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opportunity, or knowledge); Old Chief v. United States, 519 U.S. 172, 181 (1997)

(recognizing how prior convictions can taint fairness of proceeding); C r aw f or d v.

Washington, 541 U.S. 36 (2004) (Confrontation Clause of Sixth Amendment prohibits

admission of testimonial statements not subject to cross-examination); Sandstrom v.

Montana, 442 U.S. 510, 515 (1979) (holding unconstitutional instruction that law

presumes ordinary consequences of defendant's voluntary acts).

For these reasons, the single sentencing hearing provision of the FDPA is at odds

with Ring. The Supreme Court clearly stated in Ring that a defendant holds a Sixth

Amendment right to have the Government prove death "eligibility" factors to the jury

beyond a reasonable doubt. 536 U.S. at 609. The Court surely did not mean to provide

such a right, but then deprive a defendant of all the procedural protections commonly

associated with it, including the presumption of innocence and a host of other

procedural protections designed to guarantee a fair and just trial.

II. TO AVOID THE DANGERS OF UNFAIR PREJUDICE,CONFUSION

OF THE ISSUES, AND MISLEADING THE JURY, THEPROCEEDINGS SHOULD BE TRIFURCATED.

Even if the single sentencing hearing provisions of the FDPA do not collide with

Ring and Fifth Amendment procedural protections, the sentencing proceedings should

nonetheless be trifurcated. The court in United States v. Johnson, 362 F.Supp.2d 1043

(N.D. Iowa 2005), found authority for trifurcating the proceedings in the provisions of the

FDPA governing the admissibility of information.3

The court concluded that

3The Court in Johnson construed the provisions if 21 U.S.C. § 848 – a statute that

formerly set out penalty procedures for murders committed as part of a continuing

criminal enterprise. The statute’s provisions on the admissibility of information are

similar to the FDPA’s – the only difference being that before the Court may excludeinformation under the CCE statute, it must find that the probative value of the




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information relevant to the nonstatutory aggravating factors should be excluded from the

jury’s consideration of the mental state and statutory aggravating factors because the

probative value of the information was substantially outweighed by the danger of unfair

prejudice, confusing the issues and misleading the jury.

The court’s analysis in Johnson applies here. Consideration of the alleged

nonstatutory factors in this case necessarily would prejudice the jury in evaluating the

existence of the defendant’s mental state and the existence of statutory aggravating

factors. The Government has alleged in the “Notice of Special Findings” section of the

indictment all four of the mental states set forth at 18 U.S.C. § 3591. The Government

also alleges two statutory aggravating factors: (1) that Mr. Torrez has previously been

convicted of an offense punishable by a term of imprisonment of more than one year,

involving the use or attempted use or threatened use of a firearm against another person (18

U.S.C. § 3592(c)(2)) and (2) Mr. Torrez has previously been convicted of two or more State

offenses punishable by a term of imprisonment of more than one year committed on different

occasions, involving the infliction of, or attempted infliction of serious bodily injury or death

upon another person (18 U.S.C. § 3592(c)(4)).4

The nonstatutory factors, to the extent they are not duplicative of the

statutory factors, consist of non-adjudicated conduct that is plainly irrelevant to the

mental state and aggravating factors (“eligibility issues”) and should be excluded

information “substantially outweighs” its prejudicial effect. The FDPA, in contrast,omits the phrase “substantially, thereby giving the Court a broader basis to exclude

information during the sentencing hearing.4

Mr. Torrez does not concede that any of the statutory or nonstatutory factors areappropriate for submission to the jury.




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from the jury’s consideration on those issues on the grounds of unfair prejudice,

confusion of the issues, and misleading the jury.

As to unfair prejudice, victim impact information and information about other

alleged murders will have an undue tendency to cause a decision on the mental state and

statutory aggravating factors on an improper basis. See Johnson, 362 F.Supp.2d at

1106. In fact, such evidence can have unsurpassed emotional power on a jury even

when limited in scope, amount, and length. As Judge Bennett observed in Johnson:

To pretend that such evidence is not potentially unfairly prejudicial

on issues to which it has little or no probative value is simply not realistic,

even if the court were to give a careful limiting instruction. Rather, suchpotent, emotional evidence is a quintessential example of information

likely to cause a jury to make a determination on an unrelated issue on the

improper basis of inflamed emotion and bias – sympathetic or

antipathetic, depending on whether one is considering the defendant or the

victim’s families…

Therefore, as a general matter – and certainly in this case – the

danger of unfair prejudice arising from hearing “victim impact” evidence

or evidence on other “nonstatutory” aggravating factors before the jury

makes its determination on the defendant’s “eligibility” for the death

penalty, on the basis of the “gateway [mental state]” and “statutory”

aggravating factors, substantially outweighs any probative value of suchevidence to the determination of the defendant “eligibility” for a death

sentence.

Id .at 111 (and authorities cited therein). Having the jury decide the mental state and

statutory aggravating factors before hearing victim impact evidence and evidence of other

crimes will at least keep such evidence from infecting the jury's deliberations on whether

the Government has met its burden of proving the "eligibility" factors.

The need to avoid confusion of the issues under 18 U.S.C. § 3593 provides an

additional grounds to trifurcate the proceedings and exclude from the jury's decision on

"eligibility" factors any information on nonstatutory aggravating factors and mitigating

factors. By excluding extraneous information, the Court can help the jury focus its




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attention on the Government's proof of the statutory aggravating factors rather than have

to worry about the jury using information improperly.

Lastly, trifurcated proceedings will reduce the likelihood of the jury being misled

by the multiple issues it must face in a capital case. See 18 U.S.C. § 3583 (danger of

misleading the jury is grounds to exclude evidence). As Judge Bennet wrote in J ohnson:

If the jury is permitted to hear information on all of the factors in one

proceeding, the jury is reasonably likely to be misled into believing that

all information is pertinent to the determination of all factors and the

balance of factors, when the process under [the statute] is actually

sequential and cumulative. The jury must first find the defendant guilty;

then must find one [mental state]; then must find at least one "statutory"

aggravating factor; then may find one or more "nonstatutory" aggravatingfactors and one or more mitigating factors; then must balance all of the

factors to determine the appropriate penalty.

362 F.Supp.2d at 1109.

Findings from the Capital Jury Project lend further support to the conclusion that

trifurcated proceedings may help lessen juror confusion about capital sentencing and

increase juror comprehension of instructions. Those findings reveal, among other

things, grave problems with (1) jurors’ thinking that death is required upon proof of

certain aggravating factors; and (2) jurors’ generally misunderstanding the complex

instructions in a capital case. See gener all y William J. Bowers and Wanda D. Foglia,

Still Singularly Agonizing: Law's Failure to Pur ge Arbitrariness from Capital

Sentencing, 39 Criminal Law Bulletin 51, 63 (2003) (forty four percent of capital jurors

believed that death required when offense was “heinous, vile, or depraved”; only thirty

percent of jurors understood that aggravation had to be proven beyond a reasonable

doubt; and fifty percent erroneously believed that mitigation had to be proven beyond a

reasonable doubt).




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A trifurcated proceeding may help alleviate some of these problems. First, a

trifurcated proceeding, where the jury in the second phase focuses only on the

Government’s burden of proving the mental state and statutory aggravating factors in

order to determine Mr. Torrez’s "eligibility" for the death penalty, will refocus the

jurors’ attention on the fact that a finding of guilt on an aggravating factor does not

mean that death is the required sentence. Rather, by requiring the jury to decide Mr.

Torrez’s "eligibility" for the death penalty, hear additional evidence only if they find

him eligible, and return to deliberate in the "selection" phase, the Court can reinforce

the point that the finding of an aggravating factor, while necessary for imposition of

the death penalty, does not require it. Second, a trifurcated proceeding will permit the

Court to break the deliberative process into more manageable parts. The jury will not

be overwhelmed at one time by complex instructions about mental state, statutory

aggravating factors, nonstatutory aggravating factors, mitigating factors, and weighing.

By breaking the process down, jurors may better understand the Court's instructions

and engage in the sequential process contemplated under the FDPA.

CONCLUSION

In sum, the single-phase sentencing provisions of the FDPA raise serious

constitutional questions under Ring. Moreover, a trifurcated proceeding permits the

Court to structure deliberations in a way to minimize the danger of unfair prejudice,

confusion of the issues, and misleading the jury. For these reasons, Mr. Torrez

respectfully requests that this Court trifurcate the jury deliberations in this case.

Respectfully submitted,

Jorge Avila Torrez

By Counsel




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/s/ _

Geremy C. KamensVirginia Bar No. 41596

First Assistant Federal Public Defender

Attorney for Mr. Torrez

1650 King St., Suite 500Alexandria, Virginia 22314

Tel. (703) 600-0800Fax (703) 600-0880

[email protected]

/s/ _

Christopher M. Davis

Admitted Pro Hac Vice

Attorney for Mr. TorrezDavis & Davis

1350 Connecticut Avenue, NWSuite 202Washington, DC 20036

(202) 234-7300

[email protected]




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CERTIFICATE OF SERVICE

I hereby certify that on the 30th day of April, 2012, I will electronically file the

foregoing with the Clerk of Court using the CM/ECF system, which will then send a

notification of such filing (NEF) to the following:

Mr. Michael E. Rich

Assistant United States Attorney

2100 Jamieson Ave.Alexandria, Virginia, 22314

(703) 299-3700

[email protected]

/s/ _Geremy C. Kamens

Virginia Bar No. 41596

First Assistant Federal Public DefenderAttorney for Mr. Torrez

1650 King St., Suite 500

Alexandria, Virginia 22314

Tel. (703) 600-0800Fax (703) 600-0880

[email protected]


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Jorge Torrez Defense Trifurcate Motion