Federal Judicial Center -- 2004
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        A-1  How Much Time Elapses Between the Guilt Phase and the Penalty Phase?
        A-2  Before Whom Will the Hearing Be Held?
        A-3  Should the Penalty-Phase Hearings for Codefendants Be Combined or Separate?
        A-4  Should the Penalty-Phase Hearing Be Bifurcated?

A-1    How Much Time Elapses Between the Guilt Phase and the Penalty Phase?

In general, the penalty phase begins a day or two after the guilt-phase verdict, but in some cases there has been a significantly longer gap between the guilt and penalty phases. In United States v. Glover, 43 F. Supp. 2d 1217 (D. Kan. 1999), the defendant requested an interim period of three working days between the verdict and the sentencing hearing. The court agreed to take the three-day recess, but indicated that the amount of time allowed in such a situation should depend on the circumstances of the case. Id. at 1234.

A-2    Before Whom Will the Hearing Be Held?

Both death-penalty statutes provide that, in most circumstances, the penalty hearing should be conducted before the jury that determined the defendant’s guilt. The hearing may be held before the court alone if the defendant files a motion requesting this and the government agrees. A jury may be impaneled solely for the purpose of the penalty hearing if

• the defendant was convicted after entering a guilty plea;

• the defendant was convicted after a bench trial;

• the jury that determined guilt was discharged for good cause; or

• reconsideration of the initial death sentence is necessary.

21 USC 848(i)(1); 18 USC 3593(b). As of October 2000, we are aware of no cases in which one of these situations has occurred. Although in United States v. McCullah, 76 F.3d 1087 (10th Cir. 1996), the case was remanded by the Tenth Circuit for resentencing, the resentencing hearing was held before a judge rather than a newly impaneled jury.

In only one of the cases we reviewed did the defendant move at the time of the original trial for a sentencing hearing before the court. The case materials do not reflect a response from the government or a ruling by the court, and the sentencing hearing in that case was held before the jury that determined guilt. As we discuss in the next section, however, it is not uncommon for a defendant in a multidefendant case to ask to be sentenced by a jury other than the one that determined guilt.

A-3    Should the Penalty-Phase Hearings for Codefendants Be Combined or Separate?

Neither death-penalty statute specifically addresses the situation in which multiple defendants have been convicted by the same jury of crimes that carry a possible death sentence. Experience suggests that such defendants are likely to argue for separate sentencing hearings even if they were tried together at the guilt phase. Although some arguments advanced for severance at the penalty phase are similar to those for severance at a guilt-phase trial—for example, that the jury will be incapable of compartmentalizing the evidence relating to different defendants, or that Bruton [Footnote 36] issues regarding confessions by a codefendant will arise—a number of arguments unique to the penalty phase context have also been made. As discussed below, the current weight of authority is against severance of multiple defendants’ trials at the penalty phase.

a. Common arguments for severance of defendants’ trials at the penalty phase. In the motions filed by defendants in the cases we reviewed, the most basic argument for severance of defendants’ trials at the penalty phase was that the Eighth Amendment requires "precise and individualized sentencing" (Stringer v. Black, 112 S. Ct. 1130, 1137 (1992)) and that if a penalty hearing involves more than one defendant, the jury will not be able to sentence individually. Other arguments more specifically press this general point. The most common follow.

i. Jurors will use the circumstances of one defendant as a benchmark for the others. Defendants have argued that in a multiple-defendant hearing, the jury will "bootstrap for death." In other words, if the first defendant is given the death penalty, the jury will use his or her circumstances as a measure to determine whether the other defendant or defendants should also receive the death penalty. Rather than considering the second defendant’s case anew, it is thought, jurors will mete out the death penalty to the second defendant if they think his or her case is no stronger than that of the first defendant. Such a comparative evaluation, it is argued, is actually encouraged by the death penalty statutes, both of which cite as a mitigating factor to be considered whether "[a]nother defendant or defendants, equally culpable in the crime, will not be punished by death." 18 USC 3592(a)(4); 21 USC 848(m)(8).

ii. Defendants’ mitigating factors might be antagonistic. In several cases defendants have moved for severance based on the idea that the mitigating factors put forth by two or more defendants are antagonistic and could create prejudice if the defendants are sentenced by the same jury. If, for instance, one defendant wanted to present as a mitigating factor the fact that he or she has admitted the crime and expressed remorse, another defendant’s lack of admission of guilt could be seen by the jury as an aggravating factor. Similarly, if one defendant’s friends and family members testify on his or her behalf at the sentencing hearing and ask the jury to spare the defendant’s life, the absence of such testimony for a codefendant being sentenced by the same jury could conceivably be harmful to the codefendant.

iii. Similar mitigating factors will not be persuasive to the jury. Another argument relating to mitigating factors is that, if the defendants’ mitigating factors are similar rather than antagonistic, they will sound contrived and their force will be diluted if heard by the same jury. For example, most capital defendants present as a mitigating factor a difficult childhood, including alcoholic, drug-abusing, or sexually abusive parents. Defendants have argued that, while a jury might see such circumstances as a reason for mercy, if they are presented by more than one defendant, the jury is less likely to accord them great weight.

iv. Multiple-defendant sentencing increases the risk of racial stereotyping. In cases in which more than one death-penalty-eligible defendant is a member of a minority group, another common argument for severance is that group sentencing increases the risk of racial stereotyping, which has negative consequences for the defendants. In response to such an argument, the government normally points out, among other things, the strong general preference for joint trials, the fact that the statutes provide for sentencing to occur before the jury that determined the defendants’ guilt, and that instructions can ensure that the jury will in fact give individual consideration to each defendant.

b. Related motions. In a few of the cases we reviewed, defendants asked for money to hire an expert in the area of severance to conduct case-specific studies and determine whether failure to sever defendants’ trials at the penalty phase would prejudice one or more of the defendants. For example, in one case a defendant asked for $10,000 to hire a political science professor who would conduct studies with members of the jury pool in the district where the trial would be held to determine whether defendants would suffer prejudice by having their penalty trials joined. This motion was denied as moot when the court denied the motion for severance.

In one case, a defendant asked for discovery and inspection of evidence from codefendants that could be used against him in a joint penalty hearing.

c. Possible approaches to penalty hearings for multiple defendants. There are apparently at least three approaches to penalty hearings available to a court when multiple defendants have been convicted of crimes carrying a possible death sentence:

(1) simultaneous penalty phases before the jury that determined guilt; (2) sequential penalty phases before the jury that determined guilt; and (3) separate sentencing juries for all defendants.

i. Simultaneous penalty phases before the jury that determined guilt. One approach is to try all of the defendants in one penalty-phase hearing before the jury that determined guilt. This approach maximizes savings of time and judicial resources, and ensures that the jury has a full understanding of each defendant’s circumstances before determining whether any of them should be put to death. Possible risks of this approach include mixing up of evidence by the jury and prejudicial spillover from one defendant’s evidence to another’s. At least four judges whose materials we reviewed selected this approach, and they used strong cautionary instructions to minimize juror confusion and misattribution of the evidence. In two of the cases, United States v. Villarreal, 963 F.2d 725 (5th Cir. 1992), and United States v. Gooding, 1995 WL 538690 (4th Cir. 1995) (unpublished opinion), none of the defendants was sentenced to death.

A third case, United States v. Tipton, 90 F.3d 861 (4th Cir. 1996), involved three defendants who were convicted of capital crimes and sentenced to death by the same jury that determined their guilt. On appeal, the defendants challenged the use of a single jury for their sentencing, citing several of the arguments mentioned above. The court, while acknowledging the legitimacy of the defendants’ arguments in this regard, found no abuse of discretion with the joint-penalty-phase approach. In addition to pointing out that severance would have required three separate, largely repetitive hearings before the same jury, the court concluded that the district court’s "frequent instructions on the need to give each defendant’s case individualized consideration sufficed to reduce the risk [of prejudice] to acceptable levels." Id. at 892. The court was bolstered in its assumption that the instructions were followed by the fact that the jury reached different conclusions with respect to the three defendants: One defendant was sentenced to death for each of the crimes for which he was convicted, one was sentenced to death for three out of six crimes, and the third for one out of three crimes.

ii. Sequential penalty phases before the jury that determined guilt. A second approach is to have all defendants sentenced by the jury that determined guilt, but to hold separate, sequential penalty phases before that jury. As in the joint-penalty-phase approach, the jury does not have to hear any new evidence about the crimes of conviction. Theoretically, however, there is a risk of the first defendant’s hearing setting the tone for that of subsequent defendants. The court will also face the issue of how to select the order in which the defendants’ penalty hearings will proceed.

The sequential-penalty-phase approach was used in at least two cases for which the Center collected materials, United States v. McCullah, 76 F.3d 1087 (10th Cir. 1996), and United States v. Davis, 904 F. Supp. 554 (1995). The procedure was challenged on appeal in McCullah, but the appellate court did not reach the issue, as it remanded the case for resentencing on other grounds.

iii. Separate sentencing juries for all defendants. The third approach is for the court to have separate sentencing juries for all of the defendants. This approach is costly in terms of time and judicial resources, although defense attorneys have suggested that the government’s evidence supporting guilt of the crimes could be condensed at the penalty-phase hearing. The advantage of this approach is that it guards against the risk of juror misattribution of evidence or of aggravating or mitigating factors. However, because the death-penalty statutes specify that a defendant’s penalty hearing shall in most instances be heard by the jury that determined the defendant’s guilt, it is not clear whether they allow for this approach. None of the federal judges whose material we reviewed used this approach, and it apparently has not been tested on appeal.

A-4    Should the Penalty-Phase Hearing Be Bifurcated?

Both federal capital statutes require that the jury find that the defendant had a requisite mental state and that at least one other statutory aggravating factor exists before it can even consider whether to impose the death penalty. If the jury finds these factors, it can then consider the government’s additional aggravating factors as well as the defendant’s mitigating factors. In most cases, all evidence as to mental-state factors, statutory aggravating factors, nonstatutory aggravating factors, and mitigating factors is presented in the same hearing.

One judge with whom we spoke pointed out that this procedure creates a risk that the jury’s knowledge of all of the negative information about a defendant might lead it to find one of the threshold statutory aggravating factors when it would not have done so without that knowledge. This risk is particularly high in situations in which evidence of the statutory aggravating factor is weak and evidence of the nonstatutory aggravating factors, such as an extensive prior record of criminal activity, is strong.

This judge recommended bifurcating the penalty-phase hearing so that the jury first considers, and hears evidence about, only whether the statutory aggravating factors are present in the case. Only if the jury finds the statutory aggravating factors will it go on to consider the nonstatutory aggravating factors and the defendant’s mitigating factors. The judge also pointed out that this procedure can save judicial resources, because a complete hearing will not be required if the jury fails to find evidence of the statutory aggravating factors.

At the time of publication, we were not aware of any other judges who had tried this bifurcated approach to the sentencing hearing.

FOOTNOTES:

36     Bruton v. United States, 391 U.S. 123 (1968).