343 F.Supp.2d 23 (2004) | Cited 3 times | D. Massachusetts | November 3, 2004


On July 7, 2004, I issued a Memorandum and Order Re:Severance/Bifurcation of Guilt and Punishment. See UnitedStates v. Green, 324 F.Supp.2d 211 (D.Mass. 2004). I noted thatit was an open question as to whether the Court, sitting on afederal death penalty-eligible case (under18 U.S.C. §§ 3591-3593), was obliged to impanel a single jury charged withdetermining both guilt and, if necessary, punishment, anddeath-qualify that group before either proceeding began. Iproposed two methods to address the question, and called foradditional briefing: Method One involves impaneling a jury to hear the guilt phase in the usual way, without death-qualification, then picking the maximum number of alternates by law (already justified by the length of the trials even with two defendants). Should there be a conviction on Count Sixteen, the Court would then death-qualify the jurors from the first trial, including the alternates, to determine who is qualified to participate in the second trial. If there are not enough jurors to so qualify either Darryl Green in the first trial or Morris in the second, the Court would then discharge the guilt jury and impanel a new jury to hear punishment issues. Method Two involves an order at the outset that for various case management reasons, the Court will impanel a different punishment jury if there is a conviction.Green, 324 F.Supp.2d at 331.

Both sides have now fully briefed the issue. As describedbelow, the defendants have rejected Method One and have arguedfor adopting Method Two. The government opposes both methods.

After reviewing the materials and relevant case law, I concludethe following: I will impanel two different juries, if necessary,for each death-eligible defendant, one jury to determine guilt orinnocence and the other to reject or to impose the death penalty.I will death-qualify the punishment jury only, should a penaltyproceeding become necessary. As described more fully below, myreasons are as follows: 1. 18 U.S.C. § 3593 does not require two hearings before a single jury (described as a "unitary jury system"). This provision simply codified death-eligible defendants' constitutional right to a bifurcated hearing (on guilt/innocence and punishment), whether before a single jury (following a guilty verdict) or before a second jury. In any event, to the extent that § 3593 can be read to require a unitary jury, defendants waive that requirement. 2. I will accept the defendants' waiver of a unitary jury for both prudential reasons, as well as for reasons of fairness. As I noted in my memorandum on severance, see Green, 324 F.Supp.2d at 329, and as I describe more fully below, death-qualification, particularly in this Commonwealth at this time, will needlessly extend an already complicated jury selection process. And the effort will be completely unnecessary if the defendants are not convicted of the death-eligible offense. 3. While the Supreme Court has held that death-qualifying a unitary jury is not unconstitutional, neither has it held that the Constitution requires it. Put simply; just because death-qualifying the liability jury that may also hear the penalty phase does not offend a defendant's rights, does not mean its opposite: That the failure to death-qualify the liability jury (while death-qualifying the punishment jury) somehow undermines the government's rights. 4. Indeed, the government has no entitlement to a deathqualified guilt/innocence jury, or for that matter, to a unitary jury hearing both phases. It only has a right to death-qualify the jury that will determine punishment. See Witherspoon v. Illinois, 391 U.S. 510, 520 (1968). 5. The government's important concerns about the impartiality of the liability jury can be adequately addressed through voir dire, which, while not nearly as extensive as a voir dire that includes "deathqualification," will nevertheless be probing and exhaustive. 6. The government's important concerns about witnesses testifying in multiple proceedings can likewise be addressed by the Court. First, it is premature to assume that there will be a punishment phase, and thus, multiple proceedings for each defendant. Second, if there is a punishment phase, there are evidentiary techniques to relieve witnesses from having to appear a second time, techniques like videoconferencing, use of transcripts, stipulations, etc.

In choosing the two juries approach, I do not have to reach theconstitutional question raised by defendants whether recentstudies establish that death-qualifying the liability jury skewsthe decision-making process of the jury by making it moreconviction prone and less representative. I make my decisionbased upon the defendants' waiver of rights under § 3593,concerns about trial length and complexity, and the uniqueproblems of selecting a death-qualified jury in Massachusettsgiven its demographics and attitudes. I. BACKGROUND

Count Sixteen of the superceding indictment in the aboveentitled case alleges that Branden Morris ("Morris") and DarrylGreen1 killed Terrell Gethers ("Gethers") "for thepurpose of maintaining and increasing position in the Enterprise,which was an Enterprise engaged in racketeering activity." SeeSuperseding Indictment, filed September 17, 2003, p. 32. Thegovernment alleges that the "Racketeering Enterprise" element wasmet by the activities of the "Esmond Street Posse" (hereinafter"Esmond Street"). Esmond Street, it claims, was an enterprisewhose goal was to engage in the sale of crack cocaine andmarijuana, to seek to prevent others from interfering with theirsales, and specifically, to carry on a violent dispute with arival gang, the Franklin Hill Giants. That dispute allegedly ledto a number of murders and attempted murders during a one yearperiod in 2000 and 2001.2

There were multiple motions for severance from nearly everyparty, which I resolved. My goal in responding to the motions — like my goal in the instant motion — was to balance thesubstantial concerns of both sides. Accordingly, I made thefollowing orders: Darryl Green and Jonathan Hart will be tried onJanuary 10, 2005; Branden Morris and Edward Washington will betried on April 11, 2005 (although I indicated that I wouldrevisit their joinder following the completion of the DarrylGreen/Hart trial. Torrance Green will be tried alone on July 11,2005. In addition, I scheduled trial dates and set aside monthlyhearings to expedite the proceedings. To date, the cases areprogressing according to the schedule.

The issue before me principally concerns the conduct of thetrials of the two death penalty defendants, Morris and DarrylGreen. However, since the trial of each is joined with anotherdefendant not facing the death penalty (Washington and Hartrespectively), these issues in fact affect virtually all thedefendants.

Should a penalty phase be necessary, there is no question thatthe government is entitled to death-qualify the punishmentjury. Witherspoon, 391 U.S. at 520. Specifically, thegovernment may ask whether the venireman's views about the deathpenalty "would prevent or substantially impair the performance ofhis duties as a juror in accordance with his instructions and hisoath." Wainwright v. Witt, 469 U.S. 412, 424 (1985) (internalquotations omitted); Witherspoon, 391 U.S. at 520. Since the usual practice is to have a guilt trial followed by apenalty trial before the same jury, the usual result is that theCourt death-qualifies the guilt jury as well.3 Section3593, for example, codifies this practice by providing that thecapital hearing "shall be conducted — (1) before the jury thatdetermined the defendant's guilt," or "before a jury impaneledfor the purpose of the hearing if the jury that determineddefendant's guilt was discharged for good cause."18 U.S.C. § 3593(b).

But the usual practice of death-qualifying a single jurycharged with hearing both liability and punishment is neitherconstitutionally nor statutorily required. It has simply evolvedas a standard practice. Nothing prevents this Court fromfashioning a different procedure more suited to the facts of thiscase, to the exigencies of the Court's calendar, and to thepromotion of fairness to both sides.

Defendants' claims raise the following questions: 1) Does 18 U.S.C. § 3593 require that the guilt/innocence jury and the punishment jury be one and the same? 2) If the punishment jury must be "death-qualified," does it follow that the guilt/innocence jury also must be "death-qualified"? 3) Can the defendant waive rights under § 3593 over the government's objection? 4) If these rights can be waived, how can the government's interests be protected?II. LEGAL FRAMEWORK

A. 18 U.S.C. § 3593 Only Requires a Bifurcated Proceeding;it Does Not Mandate a Unitary Jury

1. Gregg v. Georgia

In Gregg v. Georgia, 428 U.S. 153, 190-91 (1976), the SupremeCourt held that the Constitution requires a bifurcated proceedingin a death penalty case, one to determine guilt and the other todetermine punishment. A single proceeding to resolve both issues,the Court found, had serious constitutional flaws. For example,the government would be obliged to introduce highly prejudicialevidence (like criminal record) that is not otherwise admissible.Limiting instructions would be inadequate to cure the prejudicesuffered by the defendant. As the Court noted: "When a human lifeis at stake and when the jury must have information prejudicialto the question of guilt but relevant to the question of penaltyin order to impose a rational sentence, a bifurcated system ismore likely to ensure elimination of the constitutionaldeficiencies identified in Furman v. Georgia [408 U.S. 238(1972)]." Id. at 191-92.

Gregg, however, did not address the issue of whether thatbifurcated proceeding had to be held before a single jury or twojuries. The Georgia statute which the Court reviewed involved a unitary jury, with a penalty phase immediately following aliability phase.4 The issue before this Court was notraised.

2. Death Qualification

Long before Gregg and the bifurcated jury requirement, it wasa "nearly universal" practice for a state to permit the broadexclusion of veniremen with conscientious scruples againstcapital punishment.5 In Witherspoon the Courtscrutinized this practice, narrowing what "death qualification"meant. The Court vacated the sentence of a defendant from whosejury the state had excluded all venire persons expressing anyscruples against capital punishment. Such a practice, the Courtheld, created a "tribunal organized to return a verdict ofdeath." Witherspoon, 391 U.S. at 541. The only jurors who couldbe excluded were those who "made unmistakably clear . . . thatthey would automatically vote against the imposition of capitalpunishment," or that they could not assess the defendant's guiltimpartially. Id. at 522-523 n. 21. But again, Witherspoon and its progeny, Wainright, did notaddress the question before me — whether the Court is obliged todeath-qualify a unitary jury. While the Court raised concernsabout the practice, and suggested two juries, it did not resolvethe issue.

3. Unitary Jury Versus Two Juries

In Lockhart v. McCree, 476 U.S. 162 (1986), the Court finallyaddressed, albeit indirectly, the question of whether theConstitution permits or prohibits a unitary jury or dual juries.In Lockhart the court concluded that the practice ofdeathqualifying the unitary jury did not violate a defendant'srights.6 See also Buchanan v. Kentucky,438 U.S. 402 (1987) (finding that the use of death-qualified jury for ajoint trial in which the death penalty was sought only againstone defendant did not violate the Sixth Amendment right to animpartial jury). Death-qualification of the unitary jury, in short, on the record then presented to the Court,7 didnot raise constitutional issues.

But that conclusion did not suggest its opposite, which thegovernment argues here — that a court must have a unitary jury,that the unitary jury must be death-qualified in all cases, andindeed, that the government has a right to a death-qualifiedunitary jury. The precise question in Lockhart was whether "theConstitution prohibit[s] the removal for cause, prior to theguilt phase of a bifurcated capital trial, of prospective jurorswhose opposition to the death penalty is so strong that it wouldprevent or substantially impair the performance of their dutiesas jurors at the sentencing phase of the trial." Id. at 165.The Court held that the Constitution did not prohibit theremoval of death penalty opponents for cause. Importantly, it didnot hold that the Constitution requires the removal of deathpenalty opponents prior to the guilt phase.

Indeed, dicta in Witherspoon supports the view that a unitaryjury is not mandated. In Witherspoon, the Court addressed thestate's interest "in submitting the penalty issue to a jurycapable of imposing capital punishment" on the one hand, and thedefendant's "interest in a completely fair determination of guiltor innocence," on the other. The Court suggested that one way to accommodate these concerns was to useone jury to decide guilt and another to fix punishment.Witherspoon, 391 U.S. at 520 n. 18.8 While theLockhart court ultimately concluded that that accommodation wasnot mandated by the Constitution,9 nothing in thedecision suggests that a court could not implement it in anappropriate case. In any case, the fact that the Court did notfind a violation of defendant's constitutional rights, and thus,that there was no need to accommodate those rights with thestate's concerns, did not somehow "constitutionalize" the state'sinterest in the quickest and most efficient capital trial.

4. § 3593 Does Not Require a Unitary Trial; to the Extent itCan Be So Interpreted, the Requirement Can Be Waived

The relevant statute, 18 U.S.C. § 3593, seems to reflect thelong-standing practice of a unitary jury. It provides that the capital sentencing hearing "shall be conducted (1) before thejury that determined the defendant's guilt," or (2) "before ajury impaneled for the purpose of the hearing if . . . the jurythat determined defendant's guilt was discharged for good cause."18 U.S.C. § 3593(b).

The government argues that there is no authority for theproposition that the court can decide in advance to discharge theguilt jury before the sentencing hearing for "good cause." See18 U.S.C. § 3593(b)(2)(C).10 Defendants argue that"evidence of systematic error" in administering the deathpenalty, particularly where a defendant was convicted by adeath-qualified jury, rises to the level of "good cause" fordismissing the liability jury and impaneling a separatesentencing jury.

In any event, whatever rights accrue to the defendant under §3593 can be waived. In effect, by objecting to death-qualifyingthe guilt jury, defendants are waiving the provisions of § 3593 that arguably oblige the Court to hold guilt andpunishment trials before the same jury.11

If the right to appeal from a sentence can be waived along witha long list of other rights, surely § 3593 rights can be waived.See, e.g., United States v. Teeter, 257 F.3d 14 (1st Cir.2001) (presentence waivers of appeal right are presumptivelyvalid if knowing and voluntary.)

a. Government's Rights to a Fair Jury Will Not Be Violatedby a Dual Jury Procedure

In my first decision I indicated that the government did nothave a right to a death-qualified jury to hear the question ofguilt. The government responded that it has the "right to have ajury of fair minded citizens who are able to apply the lawCongress has enacted." And it cites as an example, "a juror doesnot have to agree with the drug laws in order to sit on a juryfor a drug case, but his or her feelings about the drug laws must not be such as to prevent them from fairly rendering a verdictbased on the evidence."

But following with the drug analogy: The government has a rightto question a juror about whether he agrees or disagrees with theprosecution of individuals for drug offenses. They plainly wouldnot have the right to question a juror about whether he or shethinks 20 years is too long for someone convicted of the crime.In the ordinary case, voir dire does not and should notinclude questioning about punishment, e.g., what a juror'sfeelings are about convicting of "x" crime if it results in "y"sentence. Neither should the liability jury voir dire here.

Witherspoon and Wainright involved a unique series ofquestions geared to a juror's ability to impose the death penalty— whether views about the death penalty "would prevent orsubstantially impair the performance of his duties as a juror inaccordance with his instructions and his oath." Wainwright,469 U.S. at 424 (internal citations omitted). The liability jury willnot be deciding whether to impose the death penalty, any morethan an ordinary jury would.12 Indeed, in the usual criminal case, courts are scrupulous aboutavoiding telling jurors about punishment. In Pope v. UnitedStates, 298 F.2d 507 (1962), for example, the Court stated, "Toinform the jury that the court may impose minimum or maximumsentence . . . or other matters relating to disposition of thedefendant, tend to draw the attention of the jury away from theirchief function as sole judges of the facts, open the door tocompromise verdicts and to confuse the issue or issues to bedecided." Id. at 508; see also Shannon v. United States,512 U.S. 573 (1994).13

Indeed, the observations of Shannon and Pope apply withspecial force here, given the data on the "conviction proneness"of death-qualified juries, on the one hand, and the Court'sconcerns about jury nullification in Wainright and Witt onthe other. If the liability and punishment functions areseparated, there is no reason to risk prejudice to either side bydeathqualifying a jury addressing only the former. b. The Government's Concerns about Cost, and Impact ofMultiple Proceedings on its Witnesses Can Be Accommodated ThroughOther Means

The government argues that it is unfair to require itswitnesses to participate in multiple proceedings. As I noted inmy memorandum on severance, multiple liability proceedings arealready required here because of the scope and complexity of thegovernment's indictment — five defendants, a racketeeringconspiracy spanning 15 months, antagonistic defenses,coconspirator's statements.

It is premature to conclude that there will be a need for apunishment phase at all. The capital defendants have asubstantial defense — whether the Esmond Street Posse is a gangat all, and whether whatever it is meets the requirements ofRICO. While many defendants may make similar claims, thesedefendants have support for their position in Judge Wolf'sfindings in Modlin. See Green, 324 F.Supp. 2d at 321 n. 16.Moreover, even if Esmond Street were found to be a gang and aracketeering enterprise, the defendants' submissions suggest thatthere will be defenses to the claim that the murders at issuewere in furtherance of that enterprise, or motivated by someother concern.14 The government concedes the fact that death-qualification ofthe punishment jury would add substantially to the time it takesfor the Darryl Green/Hart trial and the Morris/Washington trial.Indeed, the government's view of what death-qualificationrequires substantially underestimates the time it will take in acase with multiple defendants and counsel. In a system usingseparate juries for guilt and penalty phases, time and resourceswould be saved every time a capital case did not require apenalty phase. It is entirely appropriate for this Court to avoiddevoting such substantial resources to jury selection prior tothe guilt phase when a "not guilty" verdict as to the murdercount would render death-qualification unnecessary.

To be sure, the government plainly has an important interest inavoiding the unnecessary repetition of the trauma, fear, and riskassociated with testifying for witnesses and victims of thecharged violence. But that concern can be accommodated in avariety of ways, such as stipulated summaries of evidence,transcripts and videoconferencing. See, e.g., Bruce Winick,Prosecutorial Peremptory Challenge Practices in Capital Case: AnEmpirical Study and a Constitutional Analysis, 81 Mich. L. Rev.1, 57 (1982). B. Unique Complexity of Death-Qualifying a MassachusettsJury

As I noted in my initial order, studies suggest thatdeathqualification leads to the exclusion of a disproportionatenumber of black and female jurors, especially in thisCommonwealth. Defendant's preliminary data suggests thatAfrican-Americans are under-represented in the juryvenire15 in the Eastern Division of Massachusetts, by asmuch as half their representation in the community — particularlythat 7.8%-9.1% of residents in the Eastern Division ofMassachusetts are in whole or in part African-American, that asignificantly smaller percentage are included in the jury venire,that in the United States population 48% of black people (butonly 22% of whites) oppose the death penalty, and that 45% ofMassachusetts voters overall oppose the death penalty. SeeGreen, 324 F.Supp.2d at 329. Death-qualifying a jury couldsignificantly deplete the already paltry number of minorityjurors in the Eastern District.

Initial data gathered by defendants [docket entry # 56]indicates that economic status and racial compositions of citiesare closely connected to the return rates of the local census,which determines which names are placed on the Master Jury Wheel.Defendant Branden Morris' Ex Parte Motion for Funds For AndrewBeveridge, filed August 23, 2004, at ¶ 9. Potential jurors whosenames are placed on the Master Wheel by the Federal Jury Commissioner are mailed a jury summons and a juror questionnaire.Id. Further preliminary research by defendants indicates thatonly approximately half of the summonses mailed are returned withcompleted questionnaires, and that, of the questionnairesreturned over the last three years, the percentage returned byAfrican-Americans was around 3%. Id.

These two factors — the large percentage of African-Americanswho are opposed to the death penalty and the disproportionatelysmall number of African-Americans in the Eastern District ofMassachusetts jury venire — de facto exclude all or mostAfrican-Americans from a death-qualified jury.

This result was clear in United States v. Gilbert(98-cr-30044-MAP), where of the 600 people who completedquestionnaires, the court conducted voir dire of 203 jurors toqualify sixtyfour. Only eight black individuals were voir dired —six opposing the death penalty (75%) and two favoring the deathpenalty only in special circumstances (25%). No black jurorswere seated. The result was the same in United States v.Sampson, (01-cr-10384-MLW)16 where of the 498 jurorsthat completed questionnaires only twenty-three identifiedthemselves as black (4.6%). Of the potential black jurors, ten(43.5%) were opposed to the death penalty, one (4.3%) was infavor of the death penalty, and ten were neutral (43.5%). No black jurorswere seated on that jury either.17

Moreover, similar studies raise the serious concern thatdeath-qualified juries are more conviction prone. In both of thecases where it considered the issue — Witherspoon andLockhart — the Supreme Court has rejected this argument citing"tentative and fragmentary" data. Lockhart at 170 (citingWitherspoon at 517-18). Notably, the Court did not whollyforeclose any constitutional infirmities stemming fromconviction-prone deathqualified juries. See Witherspoon at517-518 ("We simply cannot conclude . . . on the basis of therecord now before us . . . In light of the presently availableinformation . . ." that excluding jurors opposed to capitalpunishment increases the risk of conviction to the level ofconstitutional infirmity) (emphasis added). In the years sinceWitherspoon and Lockhart were decided, significant socialscience research has been devoted to studying the effect ofdeath-qualification on jurors. Updated data presented by defendants in this caseoverwhelmingly shows that death-qualified jurors aresignificantly more conviction prone than jurors who are not deathqualified. For example, nearly one half (49.2%) of alldeathqualified capital jurors make their sentencing decisionbefore the penalty phase of the trial even begins. Darryl Greenand Branden Morris's Supplemental Memorandum On the Issue ofImpaneling Separate Juries, filed September 10, 2004, at p. 6(citing William Bowers and Wanda Foglia, Still SingularlyAgonizing: Law's Failure to Purge Arbitrariness from CapitalSentencing, 30 Crim. Law Bulletin 51, 56 (2003)). Severalqualitative studies found that jurors who were exposed to thepotential punishment during jury selection have a propensity tobelieve that the subtext of the voir dire is that the trial isnot about whether the defendant committed the underlying crimebut about what punishment the defendant should receive. Id. at9-10 (citing Craig Haney, On the Selection of Capital Juries:The Biasing Effects of the Death-Qualification Process, 8 Law &Human Behavior 121 (1984); Examining Death Qualification:Further Analysis of the Process Effect, 8 Law & Human Behavior133 (1984); Haney, Hurado & Vega, "Modern" Death Qualification:New Data on Its Biasing Effects, 18 Law & Human Behavior 619(1994)). These findings represent just a sliver of the recentdata indicating that death-qualified jurors are skewed to beconviction-prone. While this decision does not rest on the conviction-prone jurorproblem, and its constitutional implications, it surely affectsmy obligations as a trial judge. Death penalty qualificationhinders my responsibility to facilitate, to the best of myability, a fair trial on guilt. It provides an additional "goodcause" justifying bifurcating the juries in the trials of thecapital defendants before me.


For all the above reasons, I will impanel a jury to decideguilt/innocence and, if necessary, a separate jury to decidepenalty. I will "death-qualify" only the latter jury.


1. I will use the full names of Darryl Green and hiscodefendant Torrance Green in this memorandum, to distinguishthem.

2. As I noted in my July 7, 2004, memorandum, defendants argue"that the government has no reasonable expectation that theseveral acts alleged in the indictment comprise acts infurtherance of an Esmond Street racketeering enterprise, becauseof Judge Wolf's findings in United States v. Modlin,01cr-10314-MLW. In Modlin, a drug distribution indictment inwhich three of the defendants here were named (along withothers), the Court at sentencing rejected the allegation thatanything like an Esmond Street conspiracy existed. Esmond Street,the Court concluded, involved nothing more than a group of peoplewho hung out together in the same geographical area, and dealtdrugs independently of one another." Green,324 F.Supp.2d at 314-315.

3. Method One, which involved proceeding with the liabilityjury without death-qualification, and then picking the penaltyphase jury from the existing jury, should there be a convictionon Count 16 does not even arguably run afoul of § 3593. If thereare not enough death-qualified jurors to proceed to the penaltyphase, the Court can find "good cause" and dismiss the existingjury and impanel a new one. But all parties reject thisalternative.

4. Indeed, the statute, Georgia Laws, 1973, Act No. 74, p.162, contemplated proceedings before a judge or a jury: "At theconclusion of all felony cases heard by a jury, and afterargument of counsel and proper charge from the court, the juryshall retire to consider a verdict of guilty or not guiltywithout any consideration of punishment. In non-jury felonycases, the judge shall likewise first consider a finding ofguilty or not guilty without any consideration of punishment.Where the jury or judge returns a verdict or finding of guilty,the court shall resume the trial and conduct a pre-sentencehearing before the jury or judge at which time the only issueshall be the determination of punishment to be imposed . . ."See Gregg, 428 U.S. at 208, n. 2.

5. Michael W. Peters, "Constitutional Law: Does `DeathQualification Spell Death for the Capital Defendant'sConstitutional Right to an Impartial Jury? [Lockhart v. McCree,106, S.Ct. 1758 (1986)] 26 Washburn L.J. 382, 382 n. 16 (1987).

6. In Lockhart, the defendant offered studies suggestingthat juries from which jurors who were opposed to the deathpenalty were excluded were more "conviction prone" than otherjuries, studies whose validity the Court questioned but adoptedfor the purposes of the decision. See Judge Nancy Gertner &Judith Mizner, The Law of Juries, Ch. III, part 2 (A)(3)(Glasser LegalWorks 1997). The Court held that even assumingarguendo that a deathqualified jury was conviction-prone, itdid not violate the fair cross-section requirement because thepetit jury was involved and not the jury venire. Moreover, evenif the fair cross-section requirement were applied to a petitjury, a group of people sharing a fixed opposition to the deathpenalty was not a cognizable group within the meaning of theFourteenth Amendment. Finally, the Court also focused on the juryactually impaneled in Lockhart and found there was nothing tosuggest that any particular juror was partial. Id.

7. The Court found the record "fragmentary" and "tentative."Lockhart, 476 U.S. at 170. Defendants have offered more recentstudies which they seek to use to confirm the defendant'sposition in Lockhart and address the Court's concerns. Seeinfra Section II(B).

8. The Court said: [A] defendant convicted by . . . a [unitary] jury in some further case might still attempt to establish that the jury was less than neutral with respect to guilt. If he were to succeed in that effort, the question would then arise whether the State's interest in submitting the penalty issue to a jury capable of imposing capital punishment may be vindicated at the expense of the defendant's interest in a completely fair determination of guilt or innocence — given the possibility of accommodating both interests by means of a bifurcated trial, using one jury to decide guilt and another to fix punishment. That problem is not presented here, however, and we intimate no view as to its proper resolution.Witherspoon, 391 U.S. at 520 n. 18.

9. See Lockhart, 476 U.S. at 184 (Marshall, J.dissenting).

10. The government cites United States v. O'Driscoll,250 F.Supp.2d 429 (M.D. Pa. 2001), for the proposition that "goodcause" cannot be determined at the beginning of the case, priorto the first jury returning a verdict on guilt. However,O'Driscoll is not binding on this Court, and moreover addressesa factual scenario that does not raise the kind of prudentialconcerns driving this Court's decision. The judge in that casefaced a trial involving one defendant and one murder charge. ThisCourt faces five defendants, three trials, and dozens of charges.Even absent the task of death-qualifying the jury, voir dire isbound to be lengthy and complex. Thus, the court in New Jerseyv. Monturi, 195 N.J.Super. 317 (1984) supported an approachidentical to this Court's: ("[T]he concepts of due process,fundamental fairness and judicial economy permit the court todeclare before the guilt phase . . . that a non `death-qualified'jury will be impaneled to hear the guilt phase and a separate`death-qualified' jury will be impaneled to hear the penaltyphase if required," id. at 325).

11. In Lockhart v. McCree, 476 U.S. 162 (1986), discussedinfra, the Supreme Court conjectured that a defendant maybenefit from being able to appeal at sentencing to the "residualdoubts" of the same jurors who found him guilty. Lockhart, at181. In his dissent, Justice Marshall found the majority'sconcern disingenuous, "unless the state is willing to grant thedefendant the option to waive this paternalistic protection inexchange for better odds against conviction." Id. at 205(Marshall, J., dissenting) (internal citations omitted). It isfurther troubling, he wrote, to appeal to "a defendant's power toappeal to `residual doubts' at his sentencing," Id. at 206,when the Court consistently refuses to reexamine lower courtdecisions precluding defendants from explicitly appealing tothese doubts during sentencing proceedings. See, e.g., Burr v.Florida, 474 U.S. 879 (1985) (Marshall, J., dissenting fromdenial of certiorari). In any event, even if there is an advantage that could accrueto the defendant with a unitary system, these defendants havechosen to waive it.

12. The Witherspoon quote cited by the government makes thisclear: "The most that can be demanded of a venireman in thisregard is that he be willing to consider all of the penaltiesprovided by state law, and that he not be irrevocably committed,before the trial has begun, to vote against the penalty of deathregardless of the facts and circumstances that might emerge inthe course of the proceedings." Witherspoon, at n. 21 (italicssupplied).

13. In Pope, the Fifth Circuit held that the trial courtproperly refused the defendant's requested jury instruction thatif the defendant were found not guilty on the ground of insanity,the court would commit him to a state mental institution until hewas cured and it was deemed safe to release him. Pope,298 F.2d 507. Likewise, in Shannon, the Supreme Court held that theInsanity Defense Reform Act does not require a jury instructionregarding the consequences to the defendant of a verdict of notguilty by reason of insanity, except under certain limitedcircumstances. Shannon, 512 U.S. 573. Both cases emphasized thelimited function of the jury to find the facts and to decidewhether, on those facts, the defendant is guilty of the crime(s)charged; information regarding the consequences of the verdict isthus irrelevant to the jury's task. Id. at 579.

14. Morris's counsel, by way of affidavit, suggests that threeperiods of violence can be discerned from the discovery so far —the first spurt of violence, from September 8 to 16, 2001, causedby "a lack of respect" (when one individual bumped into anotherand refused to apologize), the second in April of 2001, with noknown motive, and the third on August 24, and 25, 2001, over ayoung woman. Affidavit of Patricia Garin, attached to Morris'Supplemental Memorandum in Support of Motion to Sever CountEleven [docket # 165] filed June 18, 2004.

15. Defendants do not yet have data on the Master Jury Wheel.

16. The defense team in Sampson also compiled data on genderand attitudes towards the death penalty. Forty-three percent ofthe women, as opposed to 31.4% of the men were opposed to thedeath penalty. These numbers indicate a more pronounceddifferential than nationwide statistics indicating that 30% ofwomen and 22% of men oppose the death penalty.

17. These numbers present a stark comparison with theattitudes of potential white jurors who completed questionnaires.In Gilbert, 170 jurors identified themselves as white,Caucasian, or of European origin — fifty-eight (34.1%) wereopposed to the death penalty, fifty-six (32.9%) were generally infavor of the death penalty, and twenty-three (13.5%) approved ofthe death penalty in certain circumstances. In Sampson, 451(90.1%) identified themselves as white — 181 (40.1%) were infavor of the death penalty, 100 (22.2%) were neutral, and 170(37.7%) were opposed. While I recognize the limitations of thesestatistics — the small sampling size, the limited amount of dataavailable on the reasons for dismissal, the opinioncharacterizations created by defense counsel — these numbers giveme great pause.

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