United States District Court, D. Hawaii
[Copyrighted Material Omitted]
For Naeem J. Williams, Defendant: Barry D. Edwards, LEAD ATTORNEY, Kaneohe, HI; John Timothy Philipsborn, LEAD ATTORNEY, San Francisco, CA; Michael N. Burt, LEAD ATTORNEY, Law Office of Michael Burt, San Francisco, CA.
For Delilah S. Williams, Defendant: Alexander Silvert, Peter C. Wolff, LEAD ATTORNEYS, Office of the Federal Public Defender, Honolulu, HI; Judy Clarke, LEAD ATTORNEY, Federal Defenders of Eastern Washington & Idaho, Spokane, WA.
J. Michael Seabright, United States District Judge.
ORDER GRANTING IN PART AND DENYING IN PART GOVERNMENT'S OMNIBUS PENALTY PHASE MOTIONS IN LIMINE, DOC. NO. 2605
The government's April 21, 2014 Omnibus Penalty Phase Motions in Limine seek to exclude four categories of evidence from the selection phase of this capital murder trial (in the event that the jury determines that Defendant Naeem Williams (" Defendant" ) is eligible for a sentence of death). See Doc. No. 2605. Defendant filed an Opposition April 27, 2014, Doc. No. 2639, and argument was heard on May 5, 2014. Based on the following, the court GRANTS the Motions in Limine in part and DENIES them in part.
A. Motion to Exclude Unsworn Allocution by the Defendant
The government seeks to preclude Defendant from offering unsworn allocution -- i.e., an unsworn statement to the jury not subject to cross examination asking for mercy, explaining his conduct, apologizing for the crime, and/or anything else in an effort to lessen his sentence. See Doc. No. 2605, Gov't Mot. at 5; see also United States v. Jackson, 549 F.3d 963, 980 n.22 (5th Cir. 2008) (defining allocution). The government argues that Defendant does not have a constitutional or statutory right to allocution, and an unsworn statement fails the probative balancing test outlined in the Federal Death Penalty Act (" FDPA" ). The court rejects this argument.
The government bases its argument on caselaw outside this Circuit holding that there is no constitutional or statutory right to unsworn allocution before the jury in capital sentencing hearings. See United States v. Lawrence, 735 F.3d 385, 407 (6th Cir. 2013) (collecting and joining caselaw from the Fourth, Fifth, and Eighth Circuits that there is no constitutional right to allocution before a jury in a federal capital sentencing hearing). This argument ignores, however, caselaw from this Circuit -- Boardman v. Estelle, 957 F.2d 1523 (9th Cir. 1992) -- which held that a trial court's denial of a defendant's request to allocute before sentencing amounts to a denial of due process. In particular, Boardman held:
Recognizing the personal nature of the Sixth Amendment's guarantee of the right to make a defense, the unique ability of a defendant to plead on his own behalf, and the Supreme Court's acknowledgment of the continuing vitality of the practice of permitting a defendant to allocute before sentencing, we hold that allocution is a right guaranteed by the due process clause of the Constitution. Our holding is limited to circumstances in which a defendant, either unrepresented or represented by counsel, makes a request that he be permitted to speak to the trial court before sentencing. If the trial court denies that request, the defendant has not received due process.
Id. at 1529-30. Thus, Boardman stands for the proposition that " [d]ue process requires that a defendant who seeks to speak must be given such an opportunity before a sentence is imposed." See United States v. Silva, 472 F.3d 683, 687 (9th Cir. 2007).
Although Boardman did not address capital sentencing, United States v. Chong, 104 F.Supp.2d 1232 (D. Haw. 1999), applied Boardman in holding that a defendant has a right to allocute before a sentencing jury in a capital sentencing hearing. Chong saw " no basis for distinguishing [ Boardman ]
from the instant case," and explained that allowing a defendant to allocute before the sentencing judge would be an " empty formality" in capital cases where the judge lacks sentencing discretion. Id. at 1234. Chong further explained that a defendant testifying under oath and subject to cross examination is not the same as allocution:
The Court observes that the fear of cross-examination might compel capital defendants to forego addressing the jury and offering pleas for mercy, expressions of remorse, or some explanation that might warrant a sentence other than death. Moreover, the Court sees no reason why a capital defendant should have a lesser right to explain his position and ask for mercy by being sworn and subject to cross examination than a non-capital defendant, who has an unfettered right to allocute.
Id at 1236.
Although not specific to a capital case, the court believes that the prudent approach is to follow Boardman. Boardman recognizes a constitutional right to allocute, and that to make such right meaningful, the court must provide Defendant the opportunity to allocute before the jury. And to the extent the government asserts that allocution may run afoul of the evidentiary standard applicable to capital cases outlined in 18 U.S.C. § 3593(c), the court believes that limits on the scope of allocution and/or appropriate instructions to the jury will address this concern. See United States v. Biagon, 510 F.3d 844, 847 (9th Cir. 2007) (" [W]e have 'never held that a defendant has a right to unlimited allocution.'" (quoting United States v. Leasure, 122 F.3d 837, 840 (9th Cir. 1997)); see, e.g., United States v. Wilson, 493 F.Supp.2d 509, 511 (E.D.N.Y. 2007) (placing limits on scope of allocution); United States v. Henderson, 485 F.Supp.2d 831, 845 (S.D. Ohio 2007) (holding that " Defendant has a right to allocute before the sentencing jury subject to an appropriate limiting instruction" ).
During argument on this matter, counsel for Defendant indicated that, if permitted to allocute, Defendant would read from a prepared statement. The court will require, at a future time to be determined, that this statement be provided to the court and the government for review, and to allow the government to make specific objections, if any. The court therefore DENIES the government's Motion in Limine to preclude Defendant from providing unsworn allocution before the ...