August 23, 2011
A law review article written by Professor Linda Carter was cited in a high-profile decision announced on Aug. 3, 2011, by the 6th U.S. Circuit Court of Appeal.
The article, "A Beyond a Reasonable Doubt Standard in Death Penalty Proceedings: A Neglected Element of Fairness," 52 Ohio. L.J. 195 (1991), was quoted in United States v. Gabrion. In that case, the federal appeals court threw out the death sentence of a Michigan man, who was on death row in a federal prison for a double murder in a national forest. The court ruled that a judge erred in barring the defense from telling jurors that the convicted man would have faced life in prison if the state had tried the case. Michigan does not have the death penalty.
The court quoted from Carter's article and adopted her position that, in a capital case, the jury should find that aggravating circumstances outweigh mitigating circumstances beyond a reasonable doubt rather than by a preponderance standard.
The court said Professor Linda Carter has outlined the basic reasons for this requirement:
"As the Court stated in a case reaffirming the principle that all mitigating evidence must be considered, regardless whether the jurors were unanimous in finding a particular mitigating circumstance:"'The decision to exercise the power of the State to execute a defendant is unlike any other decision citizens and public officials are called upon to make. Evolving standards of societal decency have imposed a correspondingly high requirement of reliability on the determination that death is the appropriate penalty in a particular case.' [Mills v. Maryland (1988)]
"The nature of the decision itself, life or death, thus speaks forcefully for using a heightened standard of beyond a reasonable doubt," Carter wrote.
The 6th Circuit panel was split, 2-1, on the sentencing issue after unanimously affirming Gabrion's conviction. The government may file for en banc review or a writ of certiorari to appeal the case to the U.S. Supreme Court.