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The 2d U.S. Circuit Court of Appeals has reversed an order barring all evidence that an accused killer in a death-penalty case dismembered his victim. U.S. v. Pepin, No. 06-1462-cr. Judge Jack B. Weinstein of the U.S. District Court for the Eastern District of New York had ruled that prosecutors could not introduce photos and other evidence of the dismemberment in either the guilt or capital phases of Humberto Pepin’s murder and drug trafficking trial in Brooklyn. Weinstein’s reasoning, in part, was that the dismemberment evidence would inflame the jurors’ passions during a penalty phase, in which one of the jury’s main responsibilities in deciding between death and a life-without-parole sentence would be to assess the defendant’s “future dangerousness.” Writing on behalf of the 2d Circuit panel, Judge Robert Sack said, “[I]t would be odd, indeed, if the very gruesomeness of the killings of which Pepin has been charged were to disjoint and abbreviate the prosecution’s presentation of the case against him, thus disadvantaging the government in its ability to establish . . . that Pepin committed an intentional homicide in the first place.” Humberto Pepin is accused of murdering drug source Jose Rosario on Sept. 17, 2002, and Carlos Madrid, an associate, on Oct. 9, 1995. In both cases, the government alleges he cut the bodies into pieces with a knife and tried to dispose of them. Weinstein had also rebuffed the government when it sought, during the penalty phase, to introduce evidence that Pepin had sexually abused the young daughter of his former girlfriend and that he had previously pleaded guilty to child endangerment. Weinstein ruled that the child abuse evidence and the endangerment conviction would also inflame the passions of the jury and would have “minimal relevance to the future danger posed by the defendant to those with whom he is, if convicted, likely to spend the rest of his life � adult guards and male inmates.” The 2d Circuit ruled that Weinstein wasn’t required by law to accept the abuse evidence under 18 U.S.C. 3593(c), which says evidence submitted as proof of an aggravating factor in the penalty phase may be excluded if its probative value is outweighed by the danger of “creating unfair prejudice, confusing the issues or misleading the jury.” On the evidence of dismemberment in the guilt phase, however, the panel said the standard to apply is outlined in Fed. R. Evid. 403, which allows a district court to exclude evidence only if the danger of unfair prejudice would “substantially outweigh” its probative value. By contrast, Section 3593(c) permits exclusion if “one merely ‘outweighs’ the other.” Sack said that a trial court has “two separate sets of responsibilities with respect to evidence that a single jury may consider twice, once when deciding between guilt and acquittal, the other when deciding between life and death . . . .Nevertheless, if and to the extent that the district court excluded evidence from the guilt phase solely because it was excluded at the penalty phase, we conclude that it erred as a matter of law.” Weinstein’s ruling would “impermissibly allow the � 3593(c) standard to govern evidentiary rulings not only at the penalty phase, but throughout the entire proceeding.” The fact that “Pepin dismembered the bodies of the deceased is potentially too important a factor in the jury’s determination as to Pepin’s guilt vel non of the crimes of which he is accused for it to be excluded altogether at the guilt phase,” Sack said. The 2d Circuit also vacated Weinstein’s order barring dismemberment evidence from the penalty phase, finding that “we cannot know with anything approaching certainty what the precise issue before the court will be if and when it is actually framed.”

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