USA v. Smith et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
JOHN PEARL SMITH, II,
Defendant.
Case No. 3:16-cr-00086-SLG-1
ORDER REGARDING RESIDUAL DOUBT
Before the Court at Docket 704 is the government’s Motion in Limine to
Preclude Evidence or Argument Concerning Residual Doubt. Defendant John
Pearl Smith, II responded in opposition at Docket 819. The government replied at
Docket 844.
“Residual doubt” is a penalty-phase juror’s lingering doubt regarding a
defendant’s guilt, despite having previously found that defendant guilty of a capital
crime beyond a reasonable doubt.1 Studies—and other courts—have recognized
that “‘[r]esidual doubt’ over the defendant’s guilt is the most powerful ‘mitigating’
fact.”2 In the instant motion, the government seeks an order precluding Mr. Smith
1 “Residual doubt” has been described as “a lingering uncertainty about facts, a state of mind
that exists somewhere between ‘beyond a reasonable doubt’ and ‘absolute certainty.’” Franklin
v. Lynaugh, 487 U.S. 164, 188 (1988) (O’Connor, J., concurring).
2 United States v. Gonzales, Case No. 3:02CR7(JBA), 2004 WL 1920492, at *1 n.1 (D. Conn.
Aug. 17, 2004) (quoting Stephen P. Garvey, Aggravation and Mitigation in Capital Cases: What
Do Jurors Think?, 98 Colum. L. Rev. 1538, 1563 (Oct. 1998)); United States v. Young, 376 F.
Supp. 2d 787, 799 n.10 (vacated by United States v. Young, 424 F.3d 499 (6th Cir. 2005))
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from discussing residual doubt during voir dire, from introducing evidence of
residual doubt in the sentencing phase, from arguing residual doubt to the jury
during the sentencing phase, and from having the jury instructed that residual
doubt is a mitigating factor.3 The government maintains that neither the
Constitution nor the Federal Death Penalty Act (FDPA) authorize residual doubt
as mitigation.4 Mr. Smith responds that the Supreme Court and Ninth Circuit have
never resolved this issue, that the FDPA authorizes such a mitigating factor, and
that other federal courts have concluded “that residual doubt is a proper mitigating
circumstance to place before a jury in a federal capital prosecution.”5
I. Neither the Supreme Court nor the Ninth Circuit has held that there is
a constitutional right to a “residual doubt” mitigating factor.
The parties both recognize that the Supreme Court has never held that
residual doubt is a constitutionally based right.6 Moreover, when the Supreme
(quoting Bowers, et al., Foreclosed Impartiality in Capital Sentencing: Jurors’ Predispositions,
Guilt-Trial Experience, and Premature Decision Making, 83 Corn. L. Rev. 1476 (1998) for the
study’s conclusion that “[b]y far, the strongest mitigating factor was lingering doubt”); Tarver v.
Hopper, 169 F.3d 710, 715–16 (11th Cir. 1999) (“Creating lingering doubt has been recognized
as an effective strategy for avoiding the death penalty.”).
3 Docket 704 at 2.
4 Docket 704 at 2.
5 Docket 819 at 2–4 (citing United States v. Davis, 132 F. Supp. 2d 455 (E.D. La. 2001); United
States v. Honken, 378 F. Supp. 2d 1040 (N.D. Iowa 2004); United States v. Honken, 381 F.
Supp. 2d 936 (N.D. Iowa 2006); United States v. Bodkins, Case No. CRIM.A.4:04CR70083,
2005 WL 1118158 (W.D. Va. May 11, 2005); and United States v. Foster, Case No. CRIM.CCB-
02-0410, 2004 WL 868649 (D. Md. Apr. 9, 2004)).
6 Docket 704 at 3–5; Docket 819 at 2–3.
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Court has considered residual doubt, “the dicta from these cases provides a strong
indication that it would be opposed to residual doubt if it had to make a decision.”7
In Franklin v. Lynaugh, a plurality of the Supreme Court found that its prior
jurisprudence did not “suggest that capital defendants have a right to demand jury
consideration of ‘residual doubts’ in the sentencing phase.”8 The Supreme Court
emphasized that even though a sentencing jury must be allowed to consider, “‘as
a mitigating factor, any aspect of a defendant’s character or record and any of the
circumstances of the offense,’” this edict “in no way mandates reconsideration by
capital juries, in the sentencing phase, of their ‘residual doubts’ over a defendant’s
guilt.”9 Franklin specifically addressed jury instructions, highlighting that the
Supreme Court had “never held that a capital defendant has a constitutional right
to an instruction telling the jury to revisit the question of his identity as the murderer
as a basis for mitigation.”10 However, Franklin did not conclusively resolve whether
the Eighth Amendment requires presenting residual doubt to a sentencing jury as
a mitigating factor, because the Supreme Court held that the sentencing scheme
in that case was constitutional even if such an Eighth Amendment right existed.11
7 United States v. Rodriguez, Case No. 2:04-cr-55, 2006 WL 8438030, at *2 (D. N.D. Sept. 9,
2006) (citing Franklin v. Lynaugh and Oregon v. Guzek, discussed infra).
8 487 U.S. 164, 173 (1988) (plurality opinion) (emphasis in original) (citing Lockhart v. McCree,
476 U.S. 162 (1986)).
9 Id. at 174 (emphasis in original) (quoting Eddings v. Oklahoma, 455 U.S. 104, 110 (1982)).
10 Id. at 172–73.
11 Id. at 174.
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In Oregon v. Guzek, the Supreme Court again considered residual doubt
and addressed a defendant’s ability to present evidence of residual doubt. The
Court confirmed that its “previous cases had not interpreted the Eighth Amendment
as providing a capital defendant the right to introduce at sentencing evidence
designed to cast ‘residual doubt’ on his guilt of the basic crime of conviction.”12
Although the Supreme Court again did not resolve whether such an Eighth
Amendment right exists, it suggested that residual doubt may not be relevant in
the sentencing phase: “[T]he parties previously litigated the issue to which the
evidence is relevant—whether the defendant committed the basic crime. The
evidence thereby attacks a previously determined matter in a proceeding at which,
in principle, that matter is not at issue.”13 Most recently, in Abdul-Kabir v.
Quarterman, the Supreme Court yet again noted that it has “never held that capital
defendants have an Eighth Amendment right to present ‘residual doubt’ evidence
at sentencing. . . .”14
In Stenson v. Lambert, a 28 U.S.C. § 2254 habeas corpus case, the Ninth
Circuit briefly addressed residual doubt in the context of considering whether the
petitioner’s trial counsel had been ineffective for conceding guilt during the penalty
12 546 U.S. 517, 525 (2006) (emphasis in original).
13 Id. at 526.
14 550 U.S. 233, 250–51 (2007) (citing Guzek, 546 U.S. at 523–27). Currently, “federal courts
are split on the issue of whether a defendant may introduce evidence of innocence of a crime of
conviction at sentencing.” Holland v. Anderson, 583 F.3d 267, 281 (5th Cir. 2009).
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phase of a state capital trial, after the jury had found the defendant guilty.15 The
petitioner asserted that his trial counsel “should have continued to pursue a theory
of residual doubt about [the petitioner’s] guilt” in the sentencing phase.16 The Ninth
Circuit denied relief, stating that “[t]he Supreme Court has held that residual doubt
is not a properly mitigating factor.” The Ninth Circuit further found that “arguing
residual doubt is inconsistent with a capital defendant’s conviction in the guilt
phase, because sentencing traditionally concerns how, not whether, a defendant
committed the crime. By the time they reach the sentencing phase, the parties
already have litigated whether the defendant committed the crime.”17 Thus, the
Ninth Circuit expansively interpreted the Supreme Court’s cases and telegraphed
that not only is the jury not to be instructed on residual doubt as a mitigating factor,
but that the defense may not argue it to the jury in the sentencing phase.18
15 504 F.3d 873 (9th Cir. 2007).
16 Id. at 890 (citing Guzek, 546 U.S. 517 (2006)).
17 Id. (internal quotations omitted, first emphasis added, remaining emphases in original) (citing
Guzek, 546 U.S. 517 (2006)).
18 Other Circuits’ decisions appear to allow the defense to argue residual doubt to the jury in the
sentencing phase, even though no jury instruction on residual doubt is required. See, e.g.,
United States v. Smith, 904 F.2d 950, 968–69 (5th Cir. 1990), vacated on other grounds, 503
U.S. 930 (1992); Ferrell v. Hall, 640 F.3d 1199, 1231 (11th Cir. 2011) (recognizing “that ‘residual
doubt’ can be a valid approach” and referring to “residual doubt” arguments as “reasonable” and
“perhaps the most effective strategy to employ at sentencing”) (internal quotations omitted). But
see Holland v. Anderson, 583 F.3d 267, 283 (5th Cir. 2009) (recognizing “that the Supreme
Court has not recognized a constitutional right to argue ‘residual doubt’ at sentencing,” and thus
denying habeas corpus relief).
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Stenson was a § 2254 habeas corpus case, not an FDPA case, and was
decided in the context of determining whether the Washington Supreme Court’s
decision—which had held that trial counsel was not ineffective—was “contrary to,
or involved an unreasonable application of” U.S. Supreme Court precedent.19
However, the Washington Supreme Court had not addressed the petitioner’s
argument that his trial counsel “should have continued to pursue a theory of
residual doubt about [the petitioner’s] guilt” in the sentencing phase, so the Ninth
Circuit undertook “an independent review of the record” on this issue.20 In the one
paragraph of the Stenson decision that is applicable to the instant motion, the Ninth
Circuit unconditionally stated that “residual doubt is not a properly mitigating factor”
and that “arguing residual doubt is inconsistent with a capital defendant’s
conviction in the guilt phase. . . .”21 Nothing in the Stenson opinion limits those
pronouncements to that particular case or to habeas corpus cases. Accordingly,
read together, Franklin (jury instructions), Guzek (evidence), and Stenson
(argument) foreclose any sentencing-phase reliance on residual doubt.
//
//
//
19 504 F.3d at 881 (citing the Anti-Terrorism and Effective Death Penalty Act of 1996, codified at
28 U.S.C. § 2254(d)(1)).
20 Id. at 890.
21 Id.
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II. The FDPA’s definition of “mitigating factor” does not encompass
residual doubt.
Mr. Smith submits that residual doubt is a mitigating factor allowed by the
FDPA. Specifically, Mr. Smith asserts that § 3592(a) of the FDPA implies “that the
mitigating factors set out in [§ 3592(a)] are not exclusive and extend even beyond
the ‘catch-all’ set out at 18 U.S.C. § 3592(a)(8).”22 He points to the introductory
clause to the statute, which provides that “the finder of fact shall consider any
mitigating factor, including the following” mitigators.23 Section 3592(a)(8), the
“catch-all” provision, states that mitigation can include “[o]ther factors in the
defendant’s background, record, or character or any other circumstance of the
offense that mitigate against imposition of the death sentence.” Accordingly, the
issues are whether § 3592(a) of the FDPA grants this Court the discretion to allow
residual doubt as an aggravating factor, and if it does, whether the Court will
exercise that discretion.
The Court considers the FDPA in light of the Supreme Court caselaw at the
time it was enacted by Congress in 1994. In Lockett v. Ohio, decided in 1978, the
Supreme Court defined constitutionally required mitigating factors as “any aspect
of a defendant’s character or record and any of the circumstances of the offense
22 Docket 819 at 3.
23 Docket 819 at 3 (citing 18 U.S.C. § 3592(a)); see also United States v. Davis, 132 F. Supp. 2d
455, 465 (E.D. La. 2001) (“The broad language ‘any mitigating factor’ is the overall umbrella,
with the limiting language of the Supreme Court’s decisions simply a subcategory.”).
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that the defendant proffers as a basis for a sentence less than death.”24 In Franklin,
discussed supra, the Supreme Court in 1988 indicated that residual doubt was not
a constitutionally required mitigating factor, specifically referencing Lockett and
noting that “lingering doubts are not over any aspect of [a defendant’s] ‘character,
‘record,’ or a ‘circumstance of the offense.’”25 When Congress passed the FDPA
in 1994, it used language nearly identical to that in Lockett: “Other factors in the
defendant’s background, record, or character or any other circumstances of the
offense that mitigate against imposition of the death sentence.”26 Thus, when the
FDPA was enacted, the Supreme Court’s jurisprudence was “well-established”:
“Congress was thus aware that (1) consideration of residual doubt was not
constitutionally compelled and (2) it could authorize consideration of residual doubt
if it desired to do so. Clearly, Congress did not desire to do so.”27
The Court recognizes that several federal courts have allowed residual
doubt as mitigation, although it appears that the majority of courts that have
considered the issue disallow residual doubt as a mitigating factor.28 Here, even
24 438 U.S. 586, 604 (1978).
25 487 U.S. at 174.
26 18 U.S.C. § 3592(a)(8).
27 United States v. Eye, Case No. 05-00344-01, 2008 WL 2121011, at *1–2 (W.D. Mo. May 19,
2008).
28 See, e.g., United States v. George, Case No. 17-201, 2020 WL 4432276, at *7 (E.D. La. July
31, 2020); United States v. Christensen, Case No. 17-cr-20037-JES-JEH, 2019 WL 1976442, at
*5 (C.D. Ill. May 3, 2019); United States v. Caro, 483 F. Supp. 2d 513, 520 (W.D. Va. 2007) (all
granting government motion in limine regarding residual doubt). But see United States v. Davis,
132 F. Supp. 2d 455 (E.D. La. 2001) (finding that the FDPA did not bar residual doubt as a
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if the Court has the discretion pursuant to the FDPA to allow residual doubt as a
mitigating factor, it would not exercise that discretion, particularly in light of the
Ninth Circuit’s statements in Stenson. If this case reaches a penalty phase, the
jury will have found Mr. Smith guilty of at least one capital offense beyond a
reasonable doubt. A residual doubt instruction or argument would invite the jury
to require a defendant’s guilt to be proven by more than beyond a reasonable doubt
in order to impose the death penalty, which the Court declines to do. The Court
concurs with the Western District of Missouri’s observation that such a
“transformation of the burden of proof is contrary to longstanding traditions and
principles of our justice system.”29
CONCLUSION
In light of the foregoing, IT IS ORDERED that the motion at Docket 704 is
GRANTED.
DATED this 24th day of September, 2020, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
mitigating factor).
29 United States v. Eye, Case No. 05-00344-01, 2008 WL 2121011, at *2 (W.D. Mo. May 19,
2008).
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