Sixth Circuit reverses on whether Michigan’s abolition of the Death Penalty is a “Mitigating Factor” that the jury may consider

• UNITED STATES v. MARVIN CHARLES GABRION, II

In this Sixth Circuit appeal the Court considers whether Michigan’s long standing abolition of the Death Penalty is a “Mitigating Factor” that the jury may consider? There are no cases previous to this one that have ruled in a federal death case on the question of permitting evidence or argument concerning a given state jurisdiction’s policy against the death penalty. Here the Court reverses and holds that it is a relevant consideration for the jury and orders a new penalty phase of the trial.

The facts are that  Marvin Gabrion was accused of raping Rachel Timmerman in August 1996. Then he murdered her and her infant daughter in June 1997 while awaiting trial in state court for raping her. The jury verdict at the guilt phase of Gabrion’s federal murder trial accepted the government’s evidence that Gabrion bound Rachel Timmerman with chains during the first week of June 1997, took her while alive in a small boat, and dumped her into Oxford Lake with cinder blocks to weigh her down. Her bloated, drowned body was found on July 5, 1997, after it had been in the lake for several weeks. The lake was a shallow swamp filled with vegetation so that the body would stay where it was dumped from the boat and would not be carried to another location by a current or wind. The body was within the Manistee National Forest, hence federal jurisdiction, 227 feet south of the boundary. Timmerman’s eyes and mouth were covered with duct tape wrapped around her head. In addition to overwhelming circumstantial evidence, three witnesses testified that Gabrion had made statements to them incriminating himself in Timmerman’s murder.

The Federal trial court engaged in this colloquy with the prosecutor early in the case:

Prosecutor: . . . They’ve [the capital punishment decision makers in the Justice Department] told us that they do not factor into their consideration the fact that a case might come from a state that does not recognize the death penalty as opposed to a state that does.

COURT: Well, I’m not — I don’t want to argue with you, but I want to pose this question. Shouldn’t it make a difference? The people of the State of Michigan are ultimately sitting on the jury. The people of the State of Michigan are ultimately the ones of which this judge and the prosecution team and the defense team are comprised. Under a system of federalism, aren’t the state’s public policy considerations of some significance to the Department of Justice.

In reversing the death penalty decision the court made the following observations and findings.

At the sentencing phase of a death case the question is not a semi-technical question like a sentencing enhancement issue under the U.S. Sentencing Guidelines. The death penalty is never a “mandatory minimum.” In such a case each juror must call on individual judgment drawn from a lifetime of experience and learning and must decide whether to impose the death penalty or a life sentence. The broad, multi-dimensional question of the death penalty is also the reason the error in this case cannot be said to be “harmless” under the doctrine of “harmless error.” (18 U.S.C. § 3595(c) provides: “The court of appeals shall not reverse or vacate a sentence of death on account of any error which can be harmless, including any erroneous special finding of an aggravating factor, where the Government establishes beyond a reasonable doubt that the error was harmless.”) We have no way of knowing beyond a reasonable doubt what one or more jurors would have done after listening to a lawyer arguing for life by effectively using Michigan’s longstanding policy to buttress the argument, even with respect to a murderer as vile as Gabrion. Accordingly, we reverse on this issue for a new penalty phase of the trial.