DOJ ANNOUNCES DEATH PENALTY AUTHORIZATION REGULATIONS

Partly in response to criticism of the racially lopsided capital prosecution record compiled by both the Bush and Clinton Administrations, Attorney General Reno finally unveiled DOJ's death penalty guidelines and procedures on January 19, 1995.  These regulations are intended to set out the criteria to be used by local U.S. Attorneys and by the Department of Justice in deciding whether to seek imposition of the death penalty under federal law.  The regs also set out certain procedural steps that U.S. Attorneys and Main Justice are to take in passing on death penalty authorization requests. 

The one potentially important substantive criterion contained in the regulations is a requirement that in cases where a capital prosecution could be brought by either state or federal authorities, it should be filed in federal court "only when the federal interest in the prosecution is more substantial than the interests of the state or local authorities."  The regs go on to explain that this criterion includes such considerations as the extent to which the criminal activity extended beyond a single local jurisdiction or state, the relative ability and willingness of state authorities to prosecute effectively, whether state or federal agencies were primarily involved in the investigation, and so  on.  The regs specify that the unavailability of the death penalty in the state where the crime was committed cannot, by itself, justify federal capital prosecution.

DOJ's new regulations further specify that U.S. Attorneys must give notice and an opportunity to be heard to defense counsel before deciding to request death penalty authorization from the Attorney General.  Within the Department of Justice, a relatively senior-level review committee is established to review requests for death penalty authorization, and defense counsel again has an opportunity to submit reasons why authorization should be denied.  Finally, the regulations require that a fairly elaborate record-keeping system be developed to track prosecutorial decision-making in all potential capital cases, apparently so as to enable the Department to defend against future charges of racial discrimination. 

It remains to be seem whether this statistical tracking system will have any effect other than increasing the bureaucratic impetus to paper cases as capital.  It appears doubtful that the promulgation of the regulations will result in any disapprovals of death penalty authorizations that would otherwise have been approved: despite all the bureaucratic changes in this area, the most noteworthy fact is that while 61 defendants have been approved by the Attorney General since the passage of the first modern federal death penalty statute in 1988, DOJ records and court filings indicate that a grand total of only two defendants, in a single case, have been initially disapproved for a death prosecution by the AG when the United States Attorney requested authorization.  The AG's review process, in short, has so far proved to be a rubber stamp, and it seems unlikely that the new regulations will do much to affect stark geographical and racial disparities that have characterized federal capital prosecutions over the last seven years.

GOVERNMENT BRINGS FIRST
"CRIME BILL" DEATH PENALTY CASES

On February 23, 1995, federal prosecutors in Fort Worth, Texas filed notice that the government would seek the death penalty against Orlando Hall and Bruce Webster for interstate kidnapping and murder.  The victim of the crime was the 16-year-old sister of a drug dealer with whom these two defendants and three others were alleged to have had a business dispute.  Both the defendants and the victim are African-American.  This case marked the first occasion in which Attorney General Reno approved a federal prosecutor's request to seek the death penalty under the 1994 Crime Bill, which made the death penalty available for almost all federal homicide offenses. 

Another crime bill case from the Northern District of Texas quickly followed when a 43 year old retired, decorated Gulf War Veteran kidnapped, sexually assaulted and murdered a young female private in San Angelo.  A petition demanding the execution of the confessed killer drew thousands of signatures and caused the venue in this cross-racial killing to be moved to Lubbock, Texas.  Lingering doubts about the defendant's mental state -- including possible brain damage, did not prevent DOJ approval of a capital prosecution.

Other crime bill cases have been approved for capital prosecution by the Department of Justice in the last year.  These include the allegedly racially-motivated murder of a black man by a white man and two Hispanics (supposed "skinheads") in Lubbock, Texas (yet another prosecution in the Northern District); and the murder of a woman allegedly ordered by a New Orleans police officer in retaliation for her complaint against the officer.  The "skinhead" Lubbock and New Orleans "police officer" cases mark the first death penalty prosecutions for civil rights violations in modern times.  Shortly after the district court granted severance of the three Lubbock defendants, the United States withdrew its request for the death penalty and moved for rejoinder.

DOJ SEEKS DEATH IN HOBBES ACT CASE

In an ominous development, the Attorney General has approved a Kansas capital prosecution, although the federal jurisdictional basis in this run-of-the-mill robbery murder is solely premised on its impact on interstate commerce. Two defendants of Asian descent (Laotian and Vietnamese) are charged with the armed-robbery/murder of a Chinese restaurant proprietor in Wichita, Kansas.  Federal jurisdiction is based on the Hobbes Act, 18 U.S.C. § 1951, prohibiting obstruction of interstate commerce.  The Attorney General's approval of this capital prosecution was announced on June 2, 1995.  It marks the first time that the Hobbs Act has been used to federalize as a capital case a prosecution for murder committed during a commercial robbery.  A recent request by counsel to deauthorize this case as a capital prosecution -- because of the reed-thin federal interest -- was rejected by the Department.  Trial is scheduled for 1996. 

848 PROSECUTIONS CONTINUE

In addition to the new federal death penalty cases authorized under the 1994 crime bill, Attorney General Reno has this year approved eight new death penalty prosecutions in five cases brought under the 1988 Anti-Drug Abuse Act, 21 U.S.C. § 848(e).  On March 20, the U.S. Attorney for the District of Columbia announced a death penalty prosecution against 23-year-old Donzell McCauley, who was charged in the drug-related murder of a D.C. police officer.  This authorization was notable for the fact that the U.S. Attorney initially recommended against capital prosecution, and was persuaded to seek the death penalty by the Attorney General.  The second, announced on April 18, involves two New York men charged for a drug-related murder in Binghamton, New York.  In both of these cases, the defendants are black and the murder victims were white.

Drug related capital prosecutions were also approved in the Western District of Missouri (two Caucasian defendants) and both the Western and Eastern Districts of Virginia (three African-American defendants).  

CAPITAL PROSECUTIONS NOT APPROVED IN ALL CASES

Not all potential capital prosecutions were prosecuted as such.  Cases where authorization was not sought by United States Attorneys include the robbery-murder of four people in a Montclair, New Jersey post office and a New Mexico carjacking murder of a young Hispanic honor student by youthful Hispanic defendants.  Additionally, in a Harrisburg, Pennsylvania case, where the judge had rejected a mid-capital trial plea agreement, the  Department instructed the United States Attorney not to seek the death penalty at the retrial.  This likely was due in part to the DOJ's previous rejection of a capital prosecution for two co-defendants.  The Harrisburg case is the only documented instance where a request to seek the death penalty was turned down by the Department of Justice.

OKLAHOMA CITY BOMBING CASE APPROVED - AUTHORIZATION PROCESS CHALLENGED IN OKLAHOMA AND NEW YORK

Since enactment of the Federal Death Penalty Act of 1994, the Clinton Administration has authorized federal prosecutors to seek the death penalty against 22 defendants.  Two of the more recent authorizations were against Timothy McVeigh and Terry Lynn Nichols, charged in connection with the Oklahoma City bombing.  Since both the President and the Attorney General announced a capital prosecution before an arrest, obviating any meaningful authorization process, McVeigh and Nichols have attacked the DOJ authorization protocols as a sham in their case at least, since the regulations were ignored before the ink was even dry.  Trial, apparently in a location near Oklahoma City, is currently expected next spring.

In Binghamton, New York, counsel filed a separate civil suit alleging that the authorization process violates the Administrative Procedures Act.

TWO NEW DEATH SENTENCES AND FIVE CAPITAL TRIALS UNDERWAY THIS FALL -- ALL EIGHT CLIENTS BLACK

The first two death cases charged under the 1994 Act went to trial during October, and as might have been expected, both are in Texas.   Both ended in sentences of death within days of each other, after each defense team pleaded unsuccessfully for more time. Army veteran Louis Jones was sentenced to death in Lubbock on November 3 for the kidnapping and murder of a female enlistee from an airbase near San Angelo, Texas. In Ft. Worth, Orlando Hall was condemned on November 7 for interstate kidnapping and murder.  Both juries rejected various background related mitigating circumstances as not proven or irrelevant, although a majority of Jones' jury felt his military service, lack of significant prior criminal record and the effect of his execution on his daughter were valid considerations.  Hall's jury voted to consider only the government deals with equally culpable co-defendants as mitigating against death.

Meanwhile, federal capital trials under the 1988 anti-drug abuse act began in Detroit on September 6 (the last of the six original capital defendants), Miami on September 18 (involving 3 capital defendants) and in Binghamton, N.Y. on October 16 (involving 2 capital defendants).  All eight capital defendants tried this fall in federal court in Michigan, Texas, Florida and New York are African-American

AS FEDERAL CAPITAL CASELOAD GROWS DISPROPORTIONATE IMPACT ON MINORITIES REMAINS

The Attorney Generals of the United States have now authorized 61 federal capital prosecutions.

 

Of the total of 61 defendants against whom the Attorney General has authorized the government to request the death penalty, twelve have been white, seven Hispanic, two Asian and 40 African-American.  Forty-nine of the 61 defendants (80%) approved for capital prosecution by the Attorney General to date are members of minority groups.

BUREAU OF PRISONS SEEKS AFTER-THE-FACT
CONGRESSIONAL APPROVAL FOR FEDERAL DEATH ROW

One of the minor embarrassments of the federal government's current foray into the execution business was the Bureau of Prison's 1994 construction of a federal execution facility in Terre Haute, Indiana, just as Congress was enacting legislation requiring  the federal government to use state facilities to execute federal prisoners.  Bureau of Prisons brass apparently made the decision to spend nearly half a million dollars on the Terre Haute death chamber without ever having read the almost-final 1994 crime bill. With construction already underway in Terre Haute during the summer of 1994, the Justice Department tried but failed to remove the state-facilities provision from the crime bill.  As a result, the crime bill's enactment on September 13, 1994 left the federal government with a state-of-the-art but arguably useless prisoner-killing facility, and an almost-completed death-row facility to house death-sentenced federal prisoners after their trials and sentencings.

The Justice Department, however, may be finding the new Congress a little more obliging than the last. In mid-October the crime subcommittee of the House Judiciary Committee approved an amendment  to remove the provisions of federal law requiring that federal executions be carried out in state facilities, and giving the Department of Justice carte blanche to enact regulations on the method and procedures for executing federal prisoners.  (As it happens, on its last day in office the Bush Administration had already promulgated such regulations -- without any Congressional authorization -- and the legislation now would effectively ratify the 1993 regs.  These regulations include a little-noticed provision allowing the Bureau of Prisons to reschedule execution dates unilaterally--without any participation by the court--whenever a stay of execution has been lifted.) 

The subcommittee did place a much-needed brake on the Bureau of Prison's announced intention to create a single national death row in Terre Haute. The Bureau's current plans is that when enough federal prisoners are under sentence of death (the federal row right now numbers only eight prisoners) the Bureau will move all federal death row inmates to Terre Haute, hundreds and thousands of miles from the attorneys and families, and hold them there  during the entire appellate and post-conviction review process.  However,  under an amendment proposed by  Rep. Charles Shumer (D-NY) and adopted by an 8-4 vote, the Bureau of Prisons would not be permitted to move prisoners from the state or region of conviction to the Terre Haute death row facility until all post-conviction remedies had been exhausted.  The effect of this amendment, if it becomes law, would be to eliminate the federal "row" at Terre Haute almost entirely, leaving only the actual executions for the Terre Haute facility. 

FIFTH CIRCUIT AFFIRMS DEATH SENTENCE

United States v. Flores and Garza, 63 F.2d 1342 (5th Cir. 1995) (Garza) joins United States v. Chandler, 996 F.2d 1073 (11th Cir. 1993), cert. denied, 114 S.Ct. 2724 (1994), as less-than-helpful authority on federal capital sentencing issues.  On September 1, the Fifth Circuit affirmed from Juan Garzas Brownsville, Texas, conviction in three § 848 murders and his resulting death sentence.

Some of the issues  (constitutionality of the § 848(n)(1) "intent" aggravators, lack of a life-without-parole-instruction) are rendered obsolete by the 1994 crime bill procedures, while others (notably the constitutionality of the "substantial planning and premeditation" aggravator) are still in issue by virtue of the new statute. 

The Court's resolution of the issues specific to the death penalty (primarily jury selection and penalty phase claims) are summarized below.

JURY SELECTION

1. The Garza  court rejected a challenge to an unusual voir dire arrangement that permitted unrestricted attorney-conducted voir dire, but limited its total duration to only three hours per side.  The Court was "sympathetic to Garza's concerns" that this procedure unduly limited individual questioning of the death penalty and reduced the honesty of jurors' responses, but found that trial judge "was successful in obtaining a free flow of information from the venire." The Court appears careful not to approve the stringent limitations imposed on voir dire examination  of jurors in this case, but holds only that the trial judge did not abuse his discretion by the conduct of voir dire. 

2. The trial judge was not required to permit defense counsel a chance to "rehabilitate" jurors who stated that they could not vote to impose the death penalty under any circumstances.

3. In an 848(e) prosecution involving murders of subordinates in a CCE, the district court properly exercised its discretion when it excused for cause a juror who would never return the death penalty in any case where the victim was involved in drug trafficking. 

DISCOVERY

4. The government "complied" with the witness-list requirement applicable to capital cases under of 18 U.S.C. § 3432 by providing a gargantuan list containing 400 names.  When Garza objected to this inflated list, the government pared it down to 200.  Ultimately only 60-70 of these witnesses were called.  Garza holds that this procedure did not constitute reversible error where Garza did not ask for further relief after being provided (during jury selection) with the 200-name list.

PENALTY INSTRUCTIONS

5. The rule of Simmons v. South Carolina, 114 S.Ct. 2187 (1994) was not violated by the prosecution's statement that the capital defendant could be sentenced to as little as 20 years on the § 848(e) counts if not sentenced to death.  A sentence of less-than-life was theoretically possible under the Guidelines (with a downward departure), albeit extremely unlikely.  Moreover, the government's evidence concerning Garza's future dangerousness was for the most part confined to his likely future behavior in prison.  Nevertheless, court acknowledges that where twenty-year sentence is "highly unlikely" a federal trial court should "in its discretion preclude the government from arguing that the defendant may be free to murder two decades hence."

6. The jury in § 848 case (unlike under new 18 U.S.C. § 3593) only recommends for or against death, and does not have the power to return a binding recommendation of life imprisonment.  Accord, United States v. Chandler, 996 F.2d 1073 (11th Cir. 1993).

7. The use of Enmund minimum intent standard (as codified in 21 U.S.C. § 848(n)(1)(A)-(D)) as statutory aggravating factor does not violate the Godfrey principle.

8. There is no error in requiring jury to weigh more than one (n)(1) intent factor with respect to a single homicide. 

9. The highest level of "n1's" aggravating mental states (that defendant "intentionally killed the victim," § 848(n)(1)(A)) does not require that killer personally strike a fatal blow, or even be present when death occurs, so long as he actively participated in the killing.

10. A Godfrey vagueness challenge to the "substantial planning and premeditation" statutory aggravating factor was rejected: "substantial" adequately conveyed the magnitude of planning necessary to distinguish aggravated murder from other murders.

11. The Court acknowledges that verdict forms or instructions that create the impression that a life sentence must be unanimous would be error, but rejects Garza's claim that the instructions in this case conveyed that impression.

12. The failure to reinstruct the jury not to draw an adverse inference from defendant's failure to testify at the penalty phase was not plain error, where no request for such an instruction was made at trial. 

13. The "beyond a reasonable doubt" standard does not apply to a sentencing jury's decision concerning whether aggravating factors outweighed mitigation factors, so there was no error in failing to so instruct the jury.

OUT-OF-DISTRICT\STATE LAWYERS AND CJA PANEL REPS
APPOINTED IN FEDERAL CAPITAL CASES

District judges have brought to life 18 U.S.C. § 3005 requirement that the best and the brightest of the capital defense bar ("learned in the law applicable to capital cases") be appointed in potential federal capital cases as recommended by federal defenders and DSD.

CJA Panel Attorneys District Representatives have, for example, found themselves called upon to accept appointment in quite a number of the 61 federal capital cases.  Bill Matthewman from Florida Southern was appointed in United States v. Chedrick Crummie (93-0252-CR-Ungaro-Benages), as was Rick Kammen from Indiana Southern in United States v. Cheeley (D.Ct. Alaska  A92-073-CR) and United States v. Brown (E.D. Mich. No. CR-92-81127).  Tony Chambers of the Eastern District of Michigan was also appointed in the Detroit case.  Paul Mitchell of the Western District of Michigan was appointed in a possible federal capital case.  United States v. Bishop (W.D.Mich. No. 1:95:CR:67).  Ken Murray of Ohio Southern was appointed with Paul Mitchell in Bishop, in a Buffalo, New York case and recently in a possible Rhode Island case, United States v. George Perry  (D. RI No. CR 95-075-010-ML). Gene Primomo of Oklahoma Eastern tried one of early cases and won a life sentence for his client in that district.  David Baugh of the Eastern District of Virginia was appointed in his district and recently in a possible Western District of Virginia capital prosecution.  District courts in New York (two cases, six defendants) and Rhode Island (five defendants) have appointed out-of-state counsel this year.

The Administrative Office of the U.S. Courts assisted Chief Judge David L. Russell in the Western District of Oklahoma in nationwide search for counsel for the Oklahoma City bombing defendants.  Oklahoma lawyer Stephen Jones, Texas lawyers Michael Tigar, Ron Woods and Richard Burr, Kansas and California staff defenders Rob Nigh and Kate Rubin were appointed.

 

FURTHER EXPANSION OF THE FEDERAL DEATH PENALTY?

Despite enacting or reinstituting the death penalty for 50-odd categories of federal offenses less than a year ago, Congress is contemplating yet further expansion of the federal death penalty.  Terrorism bills introduced in both the House (HR 1710) and Senate (S 761) this year authorize the death penalty for "an act of terrorism transcending national boundaries" that results in death.  The House of Representatives terrorism bill would specifically add three additional federal capital punishment statutes: for the murder of government employees while on duty, for the use or threatened use of weapons of mass destruction by a U.S. National outside of the United States resulting in death, and for death resulting from the use of explosives or fire.  These proposals appear redundant because the fact situations to which they may apply appear covered by last year.

SEMI-MANDATORY FEDERAL DEATH PENALTY STATUTE CONSIDERED

            The most important change from last year's crime bill has been suggested in HR 729, the House habeas "reform" bill.  This draft intends to eliminate the current federal law that requires the judge to inform a federal jury of the existence of non-capital sentencing alternatives and the jury's right to impose the sensible alternative of a life sentence without the possibility of parole.  This provision in the Federal Death Penalty Act of 1994 attempted to eliminate a Simmons v. South Carolina, 114 S.Ct. 2187, 129 L.Ed.2d 133  (1994) ,problem in the federal death penalty sentencing procedures of 21 U.S.C. § 848(e) et seq.  This first modern federal death penalty was enacted in 1988.  It deprived the jury of critical information about the availability of a sentence of life without the possibility of parole, indeed any information about an alternative to the death penalty.  HR 729 seeks to return federal procedure to that suggested in § 848 procedure which caused considerable confusion in the federal courts, see Chandler v. United States, 996 F.2d 1073 (11th Cir. 1993), cert. denied, 114 S.Ct. 2724 (1994),  and eliminate the Simmons fix in last year's crime bill.

More ominous, the House proposal seeks to eliminate jury discretion in capital sentencing by adopting a semi-mandatory sentencing provision in which the jury "shall" sentence the defendant to death if the aggravating circumstances outweigh the mitigating circumstances.  See Blystone v. Pennsylvania, 494 U.S. 299 (1990).  Prior federal capital sentencing procedure required the jury to consider a non-death option in any event.  "The jury ... regardless of its findings with respect to aggravating and mitigating factors, is never required to impose a death sentence and the jury shall be so instructed."  21 U.S.C. § 848(k).

FDPRC PROJECT ATTEMPTS TO TRACK
FEDERAL DEATH PENALTY PROSECUTIONS

The Project has disseminated a new federal death penalty data form, adjusted to account for the expanding federal jurisdiction over capital punishment resulting from the "Federal Death Penalty Act of 1994."  One of these forms, included here, should be submitted for each potential federal death penalty case. The Project needs information, even bits and pieces, on cases arising after September 13, 1994.  Without your assistance we can not adequately monitor federal death penalty cases and we certainly can not feel confident we have the same or better information than the Department of Justice.

Should any member of our informal network hear of a possible case, please do not assume the Project is aware of its existence.  There is no great need to submit detailed information if it is not readily available.  Partial information, even the name of a lawyer or a defendant, is gratefully accepted.  A Project lawyer will follow up.

The Federal Death Penalty Defense Newsletter is produced from time to time by the Federal Death Penalty Resource Counsel Project for the benefit of federal public defenders and CJA panel attorneys. Comments, thoughts and suggestions concerning the defense of federal capital prosecutions, as well as information about new or potential federal death cases in your district, should be directed to:

Kevin McNally	David Bruck
513 Capitol Avenue	1247 Sumter St. Suite 302
P.O. Box 1243	P.O. Box 11744
Frankfort KY 40602	Columbia SC 29211
Telephone: 502/227-2142	Telephone: 803/765-1044
Fax: 502/227-4669	Fax: 803/765-1171
Desk/Modem: 502/875-3890

FEDERAL DEATH PENALTY DATA FORM                       Rev. 9/10/95

1.  DEFENDANT

Name: ___________________________ DOB: __________ Age:_____ Race:____ Sex: _____

SSN#: ____________ Prior felony\mis. record____________________________________

2.  DEFENSE COUNSEL

#1                                                                                #2
Name: ________________________________            _________________________________ 

Address: ______________________________            __________________________________

Phone:   _______________________________            _______________________________

Fax:    ________________________________            _________________________________

3.  HOMICIDE VICTIM(S)

#1                                                                                #2

Name: ________________________________            Name:_________________________

Age: _______ Race: _________ Sex: _______            Age: ____ Race: _________ Sex: _____

#3                                                                                #4

Name: ________________________________            Name:_________________________

Age: _______ Race: _________ Sex: _______            Age: ____ Race: ____________ Sex: _____

4.  FACTS

Briefly descirbe and attach news articles_____________________________________________

_______________________________________________________________________

_________________________________________________________________________

__________________________________________________________________________

5.  ALLEGED ROLE

                                                            YES                                         NO

Kingpin\boss                                        ________                                ________

Participated in killing                            ________                                ________

Present at killing                ________                                ________

Wheelman                                            ________                                ________

Other                                                   ________                                ________

6.  COURT

State: _____ Ind. no. _______________  District: _____________________ Division:_______

Judge:___________ Related cases(s):____________________________________________

Related court:______________________ Related inf.\ind. no(s):________________________

7.  DATES

Homicide(s):____________________________________ Arrest: _________ Indictment:____

Sup. ind.:_________ Death notice:_________ Trial:__________ Sentencing: ______________

8.  FEDERAL JURISDICTION

___Spy ___ Drugs ___ Homicide ___ Title_____ § ____Sub §____

Theory of prosecution:_________________________________________________________

__________________________________________________________________________

9.  AGGRAVATING CIRCUMSTANCES

Statutory: __________________________________________________________________

_________________________________________________________________________

Non statutory:_______________________________________________________________

__________________________________________________________________________

18 U.S.C. § 3592(b) Aggravating Factors\Espionage and Treason

1. spying or treason prior ____ 2. grave risk to national security____ 3. grave risk of death______

§ 3592(c) Aggravating Factors\Homicide

1. a) aircraft destroyed ___ b) motor vehicle destroyed ___ c) airport violence ___
d) high federal public official victim ___ e) prisoner___ or guard victim ___ f) spying ___
g) transport explosives____ h) bombing gov't property____ i) life term prisoner defendant____
j) kidnapping ____ k) diplomat victim____ l) hostake taking____ m) wrecking trains ____
n) maritime violence___ o) maritime platform violence____ p) terrorism abroad_____
q) weapons of mass destruction______ r) treason____ s) aircraft piracy___
2. violent gun felony prior____ 
3. capital offense prior________
4. two violent priors____
5. grave risk of death____ 
6. heinous, cruel, depraved ____ 
7. hired killer_____
8. profit motive___
9. substantial planning and premeditation___
10. two felony drug priors____
11. vulnerable victim ___
12. serious federal drug prior____
13. CCE\minors____
14. public official, law enforcement, prison guard victim____
15. sexual assault prior____

§ 3592(d) Aggravating Factors\Drug Offense

1. capital offense prior ____ 2. two prior drug or violent felonies___ 3. serious federal drug prior___
4. used a firearm____ 5. distribution to under 21____ 6. distribution near school____
7. trafficking using minors____ 8. lethal adulterant____

21 U.S.C. § 848(n) Drug CCE Aggravating Factors\Homicide

1. a) intentionally killed ___ b) intended serious bodily injury ___
c) intended conduct and intended resulting killing ___
d) intended conduct knowing grave risk of death ___
2. capital offense prior ___
3. two prior violent felonies ___
4. two prior drug felonies ___
5. grave risk of death ___
6. hired killer ___
7. profit motive ___
8. substantial planning and premeditation ___
9. vulnerable victim ___
10. serious federal drug prior or CCE ___
11. distribution to under 21 ___
12. heinous, cruel, depraved ___

10.  MITIGATING CIRCUMSTANCES

18 U.S.C. § 3592(a) Mitigating Factors

1. impaired capacity ___ 2. duress ___ 3. minor participation ___ 4. equally culpable codefendants ___
5. no prior criminal conduct ___ 6. severe mental or emotional disturbance ___
7. victim consented to criminal activity ___ 8. other factors ___

21 U.S.C. § 848(m) Mitigating Factors

1.  impaired capacity ___ 2. duress ___ 3. minor participation ___ 4. risk of death not forseen ___
5. youthful ___ 6. no significant prior record ___ 7. severe mental or emotional disturbance ___
8. equally culpable codefendants ___ 9. victim consented to criminal activity ___ 10. other factors ___

11.  AUTHORIZATION REQUEST/RESULT

Did the USA consider seeking the death penalty? yes___ no____ don't know _____
Was Attorney General authorization sought? yes____ no____ don't know_____

12.  RESULT OF PROSECUTION

Final disposition as to each homicide suspect/defendant(s)

________________________________________________________________
________________________________________________________________
Name of contact _____________ address____________________________________________ 
phone_________________ fax_______________date: _____________

SEND OR FAX TO:

KEVIN MCNALLY
FEDERAL DEATH PENALTY RESOURCE COUNSEL
P.O. BOX 1243
513 CAPITOL AVENUE
FRANKFORT, KY 40602
(502) 227-2142
fax (502) 227-4669
modem\desk (502) 875-3890