Federal Judicial Center -- 2004
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        G      Monitoring and Controlling the Pretrial Process
        G-1  Early Pretrial Conference and Regular Status Conferences
        G-2  Ruling on Pretrial Issues: Aggravating Factors
        G-3  In Camera Reviews
        G-4  Detailed and Time-sensitive Pretrial Orders
        G-5  Pretrial Publicity

Capital cases require that judges use a more active and involved management style than they use in routine criminal cases. While developing their pretrial strategies almost all of the judges we interviewed sought assistance from others with capital-case experience. For example, one judge obtained a list of all federal death-penalty cases with the names of the assigned judges, and wrote to the judges’ clerks requesting docket sheets and copies of specific motions and orders. The docket sheets provided valuable information and alerted the judge to the types of issues and events that may arise in capital cases.

Other judges reported obtaining invaluable assistance from Kevin McNally, David Bruck, and Richard Burr of the Federal Death Penalty Resource Counsel, [Footnote 34] or state judges with capital-case experience. A number of judges used law clerks and Federal Judicial Center materials to assist them in sorting out the various issues. Other judges sought assistance on certain issues from fellow federal judges who had tried death penalty cases; for example, one judge sought jury instructions and other materials for the penalty phase of his case, and another judge sought guidance and information regarding voir dire strategies and bifurcated trials.

Several of the judges we interviewed, particularly those sitting in judicial districts with states that have the death penalty, did not find it necessary to seek as much assistance from others in managing their capital cases. These judges commented that their familiarity with death-penalty issues through review of capital habeas appeals, and the greater competence of attorneys with capital experience, made pretrial management of capital cases fairly routine and not much different from that of other complex criminal cases.

The majority of judges we interviewed thought holding an early initial pretrial conference and regular status conferences was an important and effective case-management strategy. One judge commented that holding meetings with counsel informally in chambers on a regular basis allowed the attorneys to develop a rapport and to air concerns and resolve disputes that otherwise could have escalated into unnecessary confrontations. In addition, the conferences allowed the trial judge to keep abreast of emerging issues and problems, which resulted in a smoother-running trial. Another judge indicated that by holding regular status conferences, he was assured that the defendant was receiving all the relevant and necessary information he was entitled to, such as a list of witnesses and exhibits.

One area that was of concern to a number of judges was the difficulty in estimating the length of the pretrial process in a capital case. For example, in one case the judge estimated that pretrial preparation in his case took over nine months. In another case, the pretrial stage lasted only three months. Of course, the differences in time can be attributed to many factors, including the presence of more than one defendant, the nature of the other charges, the presence of novel questions of law, the types of mitigation evidence being introduced, the experience of the judge, and the number of motions. According to the Federal Death Penalty Resource Counsel, the average interval between notice and trial is about nine to twelve months. The FDPRC’s Web site, the address for which is provided in note 34 supra, contains a chart of the notice-to-trial intervals in all federal death-penalty cases tried to date.

G-2    Ruling on Pretrial Issues: Aggravating Factors

One judge recommended setting an early schedule for pretrial substantive rulings. Such scheduling helps both the government and the defense focus their trial preparation. In addition, it helps the court resolve difficult problems prior to trial. This judge believes that a logical pretrial sequence begins with scheduling and resolving all guilt phase motions, such as motions to suppress. That can be followed by the scheduling and resolution of any constitutional or other legal challenges to the federal death penalty statutes.

In addition, this judge recommends setting a deadline for the government to give notice to the defense of its intent to seek the death penalty and of the statutory and nonstatutory aggravating factors it plans to rely upon, and allowing pretrial challenges to those factors. These matters can then be resolved as quickly as possible to give both sides time for informed trial preparation.

G-3    In camera reviews

Since a capital case receives such close appellate and postconviction scrutiny, building a complete record is extremely important. One judge recommended that the court consider requiring that the government produce to the court any material that the defense arguably might be entitled to, such as FBI 302 forms, for in camera review. [Footnote 35] If the material if not disclosed to the defense, it can be sealed and placed in the record for appellate review if necessary.

G-4    Detailed and Time-Sensitive Pretrial Orders

In an attempt to streamline the discovery process, several judges established guidelines very early on. One judge set a short timetable for filing common motions at the time of arraignment so that more time could be allocated for addressing more complex motions.

To encourage counsel’s timely exchange of experts’ information and reports, another judge issued a detailed order directing the defendant to notify the court and the government no later than twenty days in advance of trial about whether he would introduce any mental health evidence, and setting forth a timetable for examination of the defendant by the government and directions for the use of any mental health reports.

G-5    Pretrial Publicity

Capital cases are high-profile cases that generate media interest, publicity, and commentary. Trial judges are given considerable discretion in their management of pretrial publicity and have a duty to minimize the effects of prejudicial publicity on the accused in a criminal trial. This duty involves examining the nature and scope of pretrial publicity to measure its prejudicial effects and using methods to ensure that the defendant receives a fair trial, but also ensuring that the First Amendment’s guarantee of freedom of the press is not violated.

Of the judges we interviewed, the majority indicated that pretrial publicity was a problem in their cases because of the heinous nature of the crime committed or because of the victim or victims involved. How the judges responded to or managed such publicity varied and was highly dependent on the nature and extent of the publicity.

Issuing gag orders to restrict extrajudicial statements of participants in a capital case is always a possibility in high-profile cases. Such orders help to ensure that a case will be tried in the courtroom and not in the media. Such orders can take many forms, including ordering the government, defense counsel, and witnesses not to talk to the media.

In several cases we reviewed, judges found it necessary to issue either a full or partial gag order. Of the judges who issued gag orders, most agreed that it was an extreme measure, but one they thought was warranted to ensure that the defendant’s constitutional rights were not violated.

In one case, the local police had published the 911 tape recording of the criminal incident, which was played repeatedly on local television stations. The recording generated considerable commentary not only from the media, but also from residents in the community. Because of the extensive media exposure and the court’s concern that it would be difficult to seat qualified jurors, the judge issued a full gag order and later conducted extensive voir dire to determine potential jurors’ knowledge of the case.

Another judge in a high-profile capital case involving widely publicized alleged police corruption issued an order prohibiting attorneys, government officials, and the defendants from commenting publicly on the case, except to state without elaboration or characterization the general nature of the crime; information contained in the public record; information about scheduling or the result of any steps or decisions in the litigation process; or other matters of public record.

Yet another judge issued a partial gag order allowing the attorneys to provide only basic case information, "with the restriction that they not engage in any histrionics."

Some of the other judges we interviewed did not find it necessary to issue gag orders, preferring to give oral admonitions to counsel about the type of behavior that would not be tolerated (e.g., leaks to the media, trying the case in the newspapers, "excessive" press statements).

FOOTNOTES:

34     Attorneys for the FDPRC serve as federal death-penalty resource counsel for death-penalty cases arising in federal court. They consult with federal defenders and panel attorneys on legal, factual, and investigative problems that arise in federal capital cases. In addition, they monitor developments pertaining to the defense function in such cases and serve as a clearinghouse for information regarding the defense of federal death-penalty cases. Much useful information about the FDPRC and about federal death-penalty cases can be found at the organization’s Web site: www.capdefnet.org.

35     Ordinarily, unless the government acquiesces in providing the materials, the defendant must make a threshold "plausible showing" that the documents sought to be reviewed contain material to which the defense is entitled. United States v. Lowery, 148 F.3d 548, 550 (5th Cir. 1998).