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For the second time in three months, a district court judge within the 2nd Circuit has declared the Federal Death Penalty Act unconstitutional. Vermont Chief Judge William K. Sessions III ruled Tuesday that the act violated due process because of “relaxed evidentiary standards” in the penalty phase of federal capital cases. In a decision that Vermont U.S. Attorney Peter W. Hall said he expects to challenge at the 2nd U.S. Circuit Court of Appeals, Judge Sessions dismissed the death penalty notice against accused murdered Donald Fell in United States v. Fell, 01-CR-12-01. The judge’s reasoning was far different from that employed by Southern District of New York Judge Jed S. Rakoff in United States v. Quinones, 205 FSupp2d 256, where the Manhattan judge ruled the likelihood that innocent people may be put to death rendered the Federal Death Penalty Act unconstitutional as a violation of due process. The key to Sessions’ opinion was a line of U.S. Supreme Court cases issued since the Federal Death Penalty Act of 1994 was passed by Congress. In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court found that any factor increasing a defendant’s penalty beyond the statutory maximum must be charged in an indictment, submitted to a jury and proven beyond a reasonable doubt. Apprendi was based on the notion that these factors are the equivalent of an element of the offense. The Supreme Court followed the Apprendi case with its decision earlier this year in the capital case Ring v. Arizona, 01-488. There the Court applied Apprendi reasoning when it found that rulings by a judge on aggravating factors needed to impose a death sentence in Arizona operate as “‘the functional equivalent of an element of a greater offense,’ and the Sixth Amendment requires that they be found by a jury.” The Supreme Court decided Ring after the indictment of Donald Fell in Vermont for the abduction and murder of Teresca King in 2000. To solve problems posed by the Ring decision, Assistant U.S. Attorneys Gregory Waples and William Darrow tried to cure any possible defect in the original indictment by obtaining a superseding indictment that outlined the aggravating factors needed to obtain the death penalty. The prosecution wanted to introduce during the penalty phase of Fell’s trial a statement made by his co-conspirator, who is now dead. Prosecutors conceded that the statement was hearsay and would not have been admissible at trial. But the Federal Death Penalty Act, they argued, allows the jury at sentencing to consider any relevant information as long as its probative value is not outweighed by the prospect of unfair prejudice or jury confusion, the “relaxed evidentiary standard,” that troubled Judge Sessions. HEIGHTENED RELIABILITY With an eye on Apprendi and Ring, Judge Sessions said, “In the course of setting forth the procedures for finding facts that will meet the heightened reliability requirements of a capital sentencing scheme, Congress produced a statute in which the death-eligibility factors to an extent resemble elements of a separate capital offense.” And the reality, he said, was that “the [act] has separated the determination of guilt of a capital offense into two adversarial fact-finding proceedings.” The judge said the government was saying in effect that it would “approve death eligibility as the federal criminal justice system’s sole exception to the practice of requiring that offense elements be proven by admissible evidence comporting with due process and fair trial guarantees.” “This makes no sense,” he said. Fell, the judge said, should have the same right to confront and cross-examine a witness against him during the penalty phase as he would at trial. “Given the unique and momentous interest at stake — the death-eligibility determination is the stage at which the penalty of life imprisonment can be converted to a death sentence — procedural rights that ensure the highest degree of reliability in the fact-finding process are imperative,” he said. “The Court concludes that the [act], which bases a finding of eligibility for imposition of the death penalty on information that is not subject to Sixth Amendment’s guarantees of confrontation and cross-examination, nor to rules of evidentiary admissibility guaranteed by the Due Process Clause to fact-finding involving offense elements, is unconstitutional.” Alex Bunin, federal public defender for the districts of Northern New York and Vermont, who is defending Fell, said the judge is saying that “the statute is broken,” and it was up to Congress to address procedural guarantees in light of Ring and Apprendi. Bunin is joined in defending Fell by Senior Litigator Gene Primomo of the federal public defender’s office and Paul Volk, a private attorney in Burlington, Vt.

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