The right to present a defense in a criminal prosecution, whether at the stage of guilt or punishment, is a foundational constitutional right. There isn’t much point to a trial, to competent counsel, if the defense can’t make its case. But this is about Dylann Roof, perhaps the most hated living person in our expanding pantheon of hated people. What about Dylann Roof?
In documents filed this week, prosecutors argue that lawyers for Roof, the accused Charleston church shooter, not be able to instruct jurors that they are never required to impose a death sentence.
Use of the word “instruct” is unfortunate and inaccurate, as defense lawyers don’t get to “instruct” jurors about anything. That’s why they give the judge the cool black robe. What they do get to do is argue to the jury that the law never mandates execution. What’s wrong with that?
At the penalty phase, if applicable, the defendant may offer argument and/or request a “mercy” instruction, wherein jurors are told that, regardless of their findings, they are never required to sentence the defendant to death. The United States objects to such an argument or instruction on the grounds that it is not consistent with the statutory scheme of the FDPA as properly interpreted by the Fourth Circuit.
The FDPA provides the defendant with a broad opportunity to present evidence in mitigation of punishment at a separate penalty phase hearing should he be convicted of a capital eligible offense. The rules concerning the admissibility of evidence and the categories about which evidence can be presented are expansive, although not unlimited.
As is the government’s wont, it complains of the high burden the law imposes to achieve a sentence of death, compared to the minimal burden on the defense to avoid it.
The FDPA requires the government to prove the existence of any aggravating factor beyond a reasonable doubt, and the jury’s finding of these factors must be unanimous. Id. § 3593(c) & (d). In contrast, the defendants’ burden is significantly lower. The defendant must prove the existence of any mitigating factor by a “preponderance of the information,” to just one or more jurors. Id. The jury must then make its final determination: whether all of the aggravating factors sufficiently outweigh all of the mitigating factors so as to justify a sentence of death.
In a vacuum, this certainly seems to make it hard, almost impossible, for the government to get a death penalty out of a jury. You almost feel bad for the government, staring at the high mountain it has to climb to put a defendant to death. But as much as the words make the climb seem ever so hard, it leaves out some salient details.
First, there’s the death qualified jury. The case won’t be tried to a gaggle of random jurors who proclaim their fairness, but to a panel that has affirmed that they will, should the circumstances meet with their approval, kill a defendant. Yes, they will be totally fair, but fair in the sense that they don’t have a problem executing a human being. The journey starts out halfway up the mountain.
But that’s not good enough when it comes to Dylann Roof. The government is greedy, and doesn’t want to be embarrassed by the possibility that the most hated man alive might not be put to death, especially after they snatched the case away from state prosecutors, because reasons.
Moreover, the FDPA also makes clear that a defendant:
shall be sentenced to death if, after consideration of the factors set forth in section 3592 in the course of a hearing held pursuant to section 3593, it is determined that imposition of a sentence of death is justified, except that no person may be sentenced to death who was less than 18 years of age at the time of the offense.
The contention is that if the government wins the balancing contest, the law requires death. After all, it says “shall be,” not may be. But the reading isn’t quite right, as it amplifies “if . . . it is determined that imposition of a sentence of death is justified,” and that’s what the jury gets to decide.
But nowhere in the FDPA is there any statutory authority for the defense to argue to the jury that they don’t have to kill, that they can decide to take the path that leads to mercy rather than the top of Death Mountain. Although, there is a question whether life in prison without possibility of release is mercy, it being the slow death penalty rather than the slightly faster and hugely more expensive one.
Then again, the FDPA doesn’t preclude the defense from arguing for mercy, that when the jury does its voodoo and balances the aggravating and mitigating factors, they do so from a perspective of mercy.
Yet, what the government seems to really be aiming for here is to persuade the court against giving the death qualified jury instructions (see where that word comes in?) that validate the defense’s mercy argument.
Mandating a death sentence based on the outcome of the jury’s weighing of aggravating and mitigating factors is permissible. In Boyde v. California, 494 U.S. 370, 374 (1990), the defendant challenged an instruction given at trial that included: “If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death.” The Court held:
Petitioner suggests that the jury must have freedom to decline to impose the death penalty even if the jury decides that the aggravating circumstances “outweigh” the mitigating circumstances. But there is no such constitutional requirement of unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence ‘in an effort to achieve a more rational and equitable administration of the death penalty.’” (citing Franklin v. Lynaugh, 487 U.S. 164 (1988)).
What could be more important than a “rational and equitable administration of the death penalty”? Mercy? Not when it’s someone we hate, and we don’t hate anyone more than Dylann Roof. Though if the defense is precluded from arguing to the jury that they should weigh the statutory factors in the context of mercy, regardless of what the judge instructs, the same prohibition will apply when it’s someone we don’t hate nearly as much.
And the likelihood, given the horrific nature of the crime, that Dylann Roof will not be sentenced to death is so minuscule, so infinitesimal, as to make a shift in the ability of the defense to argue mercy to the jury a very dangerous precedent. Do you hate Dylann Roof that much that you’re prepared to deny defendants who follow the ability to seek mercy? Do you hate mercy that much?