Federal Death Penalty - Bifurcated Trials - First Circuit Holds That Judges May Not Impanel Separate Juries for Guilt and Penalty Phases in Capital Cases

Harvard Law Review, December 2005 | Go to article overview

Federal Death Penalty - Bifurcated Trials - First Circuit Holds That Judges May Not Impanel Separate Juries for Guilt and Penalty Phases in Capital Cases


FEDERAL DEATH PENALTY--BIFURCATED TRIALS--FIRST CIRCUIT HOLDS THAT JUDGES MAY NOT IMPANEL SEPARATE JURIES FOR GUILT AND PENALTY PHASES IN CAPITAL CASES.--United States v. Green, 407 F.3d 434 (1st Cir.), cert. denied, 126 S. Ct. 497 (2005).

Given the controversy surrounding the death penalty, it comes as little surprise that the issue has caused fissures within the federal judiciary. In several circuits, district courts have taken relatively extreme positions in death penalty cases only to receive sharp rebukes from appellate panels. (1) In United States v. Green, (2) the First Circuit rejected an interpretation of the Federal Death Penalty Act of 1994 (3) (FDPA) that would have enabled trial judges to impanel two distinct juries for capital cases: a regular jury for the guilt phase and a death-qualified jury (4) for sentencing. Green, however, does more than provide another instance of tension between district court judges who devise creative solutions to circumvent the FDPA and appellate judges who rein them in. Together, the district and circuit court opinions in Green suggest a potential modification to capital jury practice that merits further consideration.

In 2003, a federal grand jury in the District of Massachusetts returned a seventeen-count indictment against five alleged members of a Boston street gang. (5) Count sixteen of the indictment charged Darryl Green and Branden Morris with murder in aid of racketeering in violation of 18 U.S.C. [section] 1959(a)(1), a capital crime. (6) Green and Morris claimed that they could not be tried together because each blamed the other for the shooting; (7) in response, Judge Gertner ordered separate trials, with Green and Morris each tried with different codefendants. (8) The defendants also objected to joining capital and noncapital defendants, claiming that both groups would be prejudiced thereby. (9) In response, Judge Gertner included two potential jury procedures in her severance order and invited the parties to respond. (10) One option involved impaneling a regular jury for the guilt phase of the trial and, if a capital defendant were convicted on count sixteen, proceeding to death qualify the jurors and impanel a new jury if too few jurors and alternates could be death qualified. (11) A second option was to impanel two distinct juries: a non-death-qualified jury to adjudicate the defendants' guilt and, if necessary, a separate death-qualified jury for the capital penalty phase. (12) The government argued against both proposals, and the defendants rejected the first and advocated for the second. (13)

The district court adopted the defendants' recommendation and ordered two juries impaneled for each trial. (14) Judge Gertner acknowledged that typically in capital cases, a single jury that has been death qualified sits for both the guilt and penalty phases of the trial. (15) Nonetheless, she argued that although the Supreme Court has held that a defendant's constitutional rights are not violated if his guilt is adjudicated by a death-qualified jury, the Court has not required that course of action. (16) She then looked to the language of the FDPA, which states that sentencing "shall be conducted (1) before the jury that determined the defendant's guilt,' or (2) 'before a jury impaneled for the purpose of the [sentencing] hearing if ... the jury that determined defendant's guilt was discharged for good cause.'" (17) Judge Gertner focused on the second provision and appeared to accept the defendants' argument that "evidence of systematic error" in administering the death penalty constituted "good cause" for a new jury to be impaneled. (18) In the alternative, Judge Gertner held that a defendant can waive his right to a unitary jury. (19) She also asserted that the chosen procedure would not violate the government's right to a fair trial. (20)

The First Circuit reversed. (21) The court first determined that it had jurisdiction over the appeal through advisory mandamus. …

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