United States v. Mikos

POSNER, Circuit Judge,

concurring in part and dissenting in part.

I agree that the defendant’s conviction should be upheld and I join that part of *720 the majority opinion. But he is entitled to a new death-penalty hearing. The prosecutor was not content to point out that the murder was the result of “substantial planning and premeditation to cause the death of a person or commit an act of terrorism,” which the Federal Death Penalty Act explicitly allows the jury to deem a factor entitling it to.impose the death penalty. 18 U.S.C. § 3592 (c)(9). He also argued that the victim “was particularly vulnerable due to old age, youth, or infirmity,” another explicit statutory factor, § 3592(c)(ll), and that (under the radically unspecific statutory catch-all- — “any other aggravating factor [that is, any other factor, besides those specified in the statute, that a jury can treat as a reason for sentencing the defendant to death] for which notice has been given,” § 3592(c) following (16)) the defendant had shown a lack of remorse for the murder. The prosecutor advanced two other nonstatutory factors as well: that the defendant had killed his victim to prevent her from testifying against him, and that the murder had caused emotional harm to the victim’s family and friends; but these add little to the fact that the victim was killed and the murder planned.

The prosecutor’s arguments based on victim vulnerability and the defendant’s lack of remorse were unsound, and I do not think it is possible to find beyond a reasonable doubt (the applicable standard, 18 U.S.C. § 3595 (c)(2)) that the jury would have sentenced the defendant to death even if those arguments had not been made. There is much fussing in the briefs over the defendant’s failure to object to the arguments, but that misses the point. Even if there was nothing wrong with the prosecutor’s making the arguments, they don’t provide a basis for a finding beyond a reasonable doubt that the victim was vulnerable or that the defendant lacked remorse.

Vulnerability is relative to the nature of the crime. United States v. Sampson, 486 F.3d 13, 48-49 (1st Cir.2007). A closeted homosexual is particularly vulnerable to being blackmailed, United States v. Lallemand, 989 F.2d 936, 939 (7th Cir.1993); United States v. Hughes, 411 F.2d 461, 462-63 (2d Cir.1969), but he is not particularly vulnerable to credit-card fraud. The fact that the victim in this case was a 5-foot 3-inch woman who weighed nearly 300 pounds might have made her particularly vulnerable to solicitations for fraudulent weight-loss programs, to mugging, and to a variety of other crimes, but not to being shot to death in her apartment. In Sampson , the victim was fleeing from a knife-wielding assailant and might have escaped had it not been that he had “undergone open-heart surgery (a quintuple bypass) approximately one year prior to his encounter with Sampson; that he was overweight and became short of breath easily; and that he had difficulty walking fifteen feet shortly before his murder.” 486 F.3d at 49 . In United States v. Paul, 217 F.3d 989, 1001-02 (8th Cir.2000), the victim was 83 years old and the court thought he might have escaped or beaten off his attackers had he been younger. This case, in contrast, is like United States v. Johnson, 136 F.Supp.2d 553, 560 (W.D.Va.2001), where “the victim was killed instantaneously when the explosive device detonated. Nothing about [her] physical condition weakened her capacity to resist the fatal blast.” See also Francis v. State, 808 So.2d 110, 139 (Fla.2001).

It is true that the younger and stronger the intended victim of a shooting, the more likely he is to be able to resist effectively or survive his wounds. But if this argument is pressed hard enough, everyone over 50 would be deemed a vulnerable victim in any case involving the use of force. Vulnerability must be assessed on *721 the basis of the relation of the victim’s condition to the particular circumstances of the crime, Jones v. United States, 527 U.S. 373, 401-02 , 119 S.Ct. 2090 , 144 L.Ed.2d 370 (1999), as in United States v. Johnson, supra.

So although the judge properly instructed the jury that the government had to prove beyond a reasonable doubt that “any infirmity which you find made [the victim] particularly vulnerable must somehow have contributed to her death,” see United States v. Sampson, supra, 486 F.3d at 34 , missing from this case is evidence that the victim’s vulnerability did contribute to her death — evidence that a healthier victim might have survived being shot six times in the back at point-blank range or that the defendant would not have tried to kill her had she been healthier because he would have been afraid that she would grab the gun from him. The government lawyer did speculate at the argument in this court that had the victim been of normal weight she might have grabbed the gun from the defendant’s grasp, but that is fanciful in the extreme, especially as he was standing behind her.

I do not mean to understate the victim’s disability caused by her obesity. She had difficulty getting up from a sitting position and needed canes for walking, and she used a catheter because she had trouble getting to the bathroom in time when she had to urinate. She had rolls of abdominal fat hanging down so low that they were at the level of her knees, and the fat had become infected and had required surgery to save her life from an infection. She had asthma and arthritis and leg cramps and for the accumulation of her ailments took about 15 medications, some of which caused drowsiness and fatigue. Although neither singly nor in combination did her ailments have anything to do with her vulnerability to being shot fatally from behind at close range, the category of non-statutory aggravating factors is open-ended and the prosecutor could have argued that to kill a person already so afflicted was especially cruel and ugly, like the “brutal and senseless execution style murder of a helpless child” in Black v. Bell, 181 F.Supp.2d 832, 863 (M.D.Tenn.2001). There are intimations of such an argument in the prosecutor’s closing statement to the jury, but he did not ask the jury to consider this as a factor in aggravation of the defendant’s conduct; he relied instead on the statutory factor of vulnerable victim, and that was a mistake; the average person would not have escaped in this case with his life. Having studied the church’s schedule, the defendant was able to sneak in when he knew that the victim would be alone. Once he was inside the church with a gun and determined to kill her, her death was inevitable, no matter what her physical condition. She could not have outrun his bullets even if she had been an Olympic sprinter.

The aggravating factor to which the prosecutor devoted the bulk of his closing argument was lack of remorse. He pointed out that after killing his victim the defendant had continued to engage in the Medicare fraud that had motivated the murder. To deem that a circumstance in aggravation was double counting. The murder was a result of substantial planning and premeditation because it was a means of trying to defeat the fraud prosecution and enable the defendant to continue engaging in fraud. The planning was an aggravating factor that entitled the jury in the exercise of its discretion to sentence him to death, but it was not evidence of a lack of remorse distinct from any inference of remorselessness that one would draw from any murder that had been planned rather than being spontaneous.

*722 The prosecutor told the jury that the defendant is “sitting 20 feet away from you and there’s nothing, no remorse whatsoever, because he thinks he got away with it.” (An echo of Camus: “And has he uttered a word of regret for his most odious crime? Not one word, gentlemen. Not once in the course of these proceedings did this man show the least contrition.” Albert Camus, The Stranger 126 (1954 [1944]).) Later the prosecutor added that the defendant is “sorry he got caught, but he’s not sorry that he shot [the victim]. The only ramification of that as he’s sitting opposite you right now, nothing else in this man’s heart, not a single thing. He has no remorse for what he did.” The only inference the jury could have drawn (for it was given no guidance by the judge, who said about remorse only that the government alleged “that defendant has demonstrated a lack of remorse for his criminal conduct” — which might have been taken to mean that it could impose the death penalty because of the defendant’s lack of remorse for committing Medicare fraud) was that his failure to confess to the murder in open court showed that he lacked remorse. Had he confessed, however, the jury might still have imposed the death penalty and he would have given away his colorable (though ultimately unsuccessful) claim that the government had failed to prove his guilt beyond a reasonable doubt.

It is true that something like this Hob-son’s Choice is built into the federal sentencing guidelines for noncapital federal crimes. Ordinarily, to obtain a sentencing discount for accepting responsibility for the crime with which one is charged one has to plead guilty and thus give up the chance to contest guilt. U.S. Sentencing Guidelines § 3E1.1, Application Notes 2, 3; United States v. Guadagno, 970 F.2d 214, 226 (7th Cir.1992); United States v. Escobar-Mejia, 915 F.2d 1152, 1153 (7th Cir. 1990); United States v. Williams, 940 F.2d 176, 183 (6th Cir.1991). But there is a difference between a defendant’s arguing for leniency on the basis of his admitting to having committed the crime with which he is charged and the government’s asking the jury to draw an inference of heinousness from his failure to admit that. United States v. Saunders, 973 F.2d 1354, 1362-63 (7th Cir.1992). In the first case the government is giving (or, Booker having demoted the sentencing guidelines to advisory status, recommending that the judge give) the defendant a break in exchange for his sparing the government the expense and uncertainty of a trial. In the second case the judge is asking the jury to infer remorselessness from the defendant’s refusal to acknowledge guilt. Yet the motive for that refusal is likely to be simply that the defendant thinks he might be acquitted. You can feel remorse for having committed a crime without wanting to be punished by life in prison or death. A defendant who accepts responsibility for his crime is not denied a sentencing discount for that acceptance on the theory that if he were really contrite he wouldn’t be seeking a lighter sentence — he would reject the acceptance discount.

One could imagine a legislature’s dissolving the difference between a punishment increase for proving lack of remorse and the denial of a punishment decrease for failing to prove remorse by deeming failure to prove remorse (a mitigating factor) proof of lack of remorse (an aggravating factor). But Congress has not done that. The Federal Death Penalty Act requires proof of an aggravating factor beyond a reasonable doubt, but proof of a mitigating factor by a mere preponderance of the evidence. As the Supreme Court explained in McMillan v. Pennsylvania, 477 U.S. 79, 100-01 , 106 S.Ct. 2411 , 91 L.Ed.2d 67 (1986) (citations omitted), “the distinction between aggravating and miti *723 gating facts has been criticized as formalistic. But its ability to identify genuine constitutional threats depends on nothing more than the continued functioning of the democratic process. To appreciate the difference between aggravating and mitigating circumstances, it is important to remember that although States may reach the same destination either by criminalizing conduct and allowing an affirmative defense, or by prohibiting lesser conduct and enhancing the penalty, legislation proceeding along these two paths is very different even if it might theoretically achieve the same result. Consider, for example, a statute making presence ‘in any private or public place’ a ‘felony punishable by up to five years imprisonment’ and yet allowing ‘an affirmative defense for the defendant to prove, to a preponderance of the evidence, that he was not robbing a bank.’ No democratically elected legislature would enact such a law.”

What would demonstrate a lack of re-, morse would be statements (such as bragging about the murder), gestures, laughter as the murder was described or a grieving relative testified, or facial expressions that indicated that the defendant had indeed no regret about having committed the murder. And thus in Emmett v. Kelly, 474 F.3d 154, 170 (4th Cir.2007), “when questioned about the circumstances leading up to the murder, Emmett told the police that [his victim] was ‘an asshole’ who ‘wouldn’t loan me no money,’ and that it ‘just seemed right at the time,’ demonstrating a lack of remorse and callous disregard for human life similar to that demonstrated in the wake of his killing of the motorcyclist a few years prior.” See also Thomas v. Gilmore, 144 F.3d 513, 514 (7th Cir.1998); Coble v. Quarterman 496 F.3d 430, 438 (5th Cir.2007); United States v. Roman, 371 F.Supp.2d 36, 48, 50-51 (D.P.R.2005).

Mere silence is not enough to demonstrate lack of remorse. Nor failure to take extraordinary efforts to demonstrate remorse, such as paying for the victim’s funeral expenses. Such a failure might defeat the defendant’s effort to plead remorse as a mitigating factor; but the absence of a mitigating factor cannot automatically be converted to the presence of an aggravating one.

Psychologists who set out to study lack of remorse among prisoners proceeded as follows: “Lack of remorse was operational-ized as either (a) a negative answer to a question concerning whether the respondent ever regretted having destroyed or stolen property, or mistreated or harmed another person, or wished these major violations of the rights of others had never happened; or (b) an affirmative answer to a question concerning whether the respondent felt he or she had the right to do the behavior(s), or that the people affected by the behavior(s) deserved what they got.” Rise B. Goldstein, et al., “Lack of Remorse in Antisocial Personality Disorder: Sociodemographic Correlates, Symptomatic Presentation, and Comorbidity With Axis I and Axis II Disorders in the National Epidemi-ologic Survey on Alcohol and Related Conditions,” 47 Comprehensive Psychiatry 289, 291 (2006); see also Martha Grace Duncan, “ ‘So Young and So Untender’: Remorseless Children and the Expectations of the Law,” 102 Colum. L.Rev. 1469, 1491-92 (2002). No effort to do that was made in this case. It would have helped had the prosecutor or the judge (or for that matter the defendant’s lawyer) told the jury what “remorse” means and how its presence or absence can be determined. They did not.

Not every premeditated murderer is sentenced to death, see, e.g., Carmichael v. State, 340 Ark. 598 , 12 S.W.3d 225 (2000); Schoels v. State, 114 Nev. 981 , 966 P.2d

*724 735 (1998); People v. Poindexter, 144 Cal. App.4th 572 , 50 Cal.Rptr.3d 489 (2006)— quite the contrary. The force of 18 U.S.C. § 3592 (c)(9) is not in the word “premeditation” but in the phrase “substantial planning” — yet not all murderers who plan their murders well in advance are sentenced to death either. See, e.g., United States v. Russell, 971 F.2d 1098, 1103-04 (4th Cir.1992); People v. St. Joseph, 226 Cal.App.3d 289 , 276 Cal.Rptr. 498, 500-01 (1990). Without the aggravating factors found by the jury in this case, it is uncertain whether the defendant would have been sentenced to death. In one study, 39.8 percent of jurors in capital cases said that a lack of remorse either made them or would have made them more likely to vote to impose the death penalty. Stephen P. Garvey, “Aggravation and Mitigation in Capital Cases: What Do Jurors Think?,” 98 Colum. L.Rev. 1538, 1560-61 (1998). A study by Theodore Eisenberg et al., “But Was He Sorry? The Role of Remorse in Capital Sentencing,” 83 Cornell L.Rev. 1599, 1633 (1998), found that lack of remorse was the third most powerful aggravating factor in capital sentencing. See also Scott E. Sundby, “The Capital Jury and Absolution: The Intersection of Trial Strategy, Remorse, and the Death Penalty,” 83 Cornell L.Rev. 1557, 1560 (1998); William S. Geimer & Jonathan Amsterdam, “Why Jurors Vote Life or Death: Operative Factors in Ten Florida Death Penalty Cases,” 15 Am. J.Crim. L. 1, JO-41 (1987-1988). “In a capital sentencing proceeding, assessments of character and remorse may carry great weight and, perhaps, be determinative of whether the offender lives or dies.” Riggins v. Nevada, 504 U.S. 127, 144 , 112 S.Ct. 1810 , 118 L.Ed.2d 479 (1992) (concurring opinion).