Murder or Attempted Murder of a Member of Congress and Other Federal Officials and Employees: Implications in Federal Criminal Law and Procedure of Events in Tucson

Congressional research reportMay 31, 2011

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Murder or Attempted Murder of a Member

of Congress and Other Federal Officials and

Employees: Implications in Federal Criminal

Law and Procedure of Events in Tucson

name redacted

Senior Specialist in American Public Law

May 31, 2011

Congressional Research Service

7-....

www.crs.gov

R41606

CRS Report for Congress

Prepared for Members and Committees of Congress

Murder or Attempted Murder of a Member of Congress and Other Federal Officials

Summary

Jared Lee Loughner was arrested for the attempted murder of Representative Gabrielle Giffords,

the murder of United States District Court Judge John Roll, and the murder or attempted murder

of several federal employees. The arrest brings several features of federal law to the fore.

Federal crimes of violence are usually violations of the law of the state where they occur; an

offender may be tried in either federal or state court or both. Ordinarily, federal crimes must be

tried where they occur, but in extraordinary cases a defendant’s motion for a change of venue may

be granted. In capital cases, the decision to seek the death penalty rests with the Attorney General.

Should a defendant elect to assert an insanity defense, he must provide pretrial notification. In the

face of that notice, the court may order an examination to determine the defendant’s competence

to stand trial. Federal law affords victims, including families of the deceased or incapacitated, the

right to confer with prosecutors, and to attend the trial and other public judicial proceedings.

Defendants, convicted of a murder for which the prosecution seeks the death penalty, are entitled

to a jury determination of whether they acted with the intent necessary to qualify for the death

penalty and whether the balance of aggravating and any mitigating factors are sufficient to

warrant the jury’s recommendation that the defendant be put to death. Defendants, convicted of

attempted murder or some other noncapital offense, are sentenced by the court without the benefit

of a jury. Sentencing in such cases begins with the federal Sentencing Guidelines, from whose

recommendations a sentencing court may depart only with reasonable justification.

Comparable provisions of state law are beyond the scope of this report.

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Murder or Attempted Murder of a Member of Congress and Other Federal Officials

Contents

Introduction ................................................................................................................................1

Pretrial........................................................................................................................................1

Federal and State Prosecution: Double Jeopardy....................................................................1

Consequences of Seeking the Death Penalty..........................................................................2

Notice.............................................................................................................................2

Indictment.......................................................................................................................2

Counsel...........................................................................................................................3

Venue and Jury Impartiality...................................................................................................3

Media Relations ....................................................................................................................4

Insanity Defense ...................................................................................................................5

Competence to Stand Trial ....................................................................................................5

Victims’ Rights .....................................................................................................................6

Discovery .............................................................................................................................7

Trial............................................................................................................................................7

Victims’ Rights .....................................................................................................................7

Sentencing ..................................................................................................................................8

Capital Punishment ...............................................................................................................8

Noncapital Sentencing ..........................................................................................................9

Victims’ Rights .....................................................................................................................9

Contacts

Author Contact Information ...................................................................................................... 10

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Murder or Attempted Murder of a Member of Congress and Other Federal Officials

Introduction

Jared Lee Loughner was arrested on January 10, 2011, on a complaint charging him with

attempting to kill a Member of Congress and of killing and attempting to kill federal officers and

employees in the performance of the their official duties in violation of 18 U.S.C. 351(c), 1114,

1111, and 1113.1 What follows is a description of the federal procedures and attendant legal

provisions generally associated with the prosecution of such cases. Comparable attributes of state

law are beyond the scope of this report.

Pretrial

Federal and State Prosecution: Double Jeopardy

If probable cause exists to believe that Mr. Loughner committed the offenses charged, he may be

prosecuted under state or federal law or both. Ordinarily, federal crimes of violence are also

crimes under the laws of the state in which they occur. Nevertheless, at first glance, the

Constitution’s double jeopardy ban might be thought to preclude prosecution by both state and

federal authorities. 2 The ban, however, only applies when the same defendant is prosecuted for

the same crime by the same sovereign.3 Following the Oklahoma City bombing, Timothy

McVeigh and Terry Nichols were prosecuted and convicted in federal court.4 Mr. Nichols, who

unlike Mr. McVeigh had not been sentenced to death following his federal conviction, was

subsequently tried and convicted for the bombing and resulting deaths in Oklahoma state court.5

U.S. Dept. of Justice, Federal Complaint Filed Against Jared Lee Loughner, available at http://www.justice.gov/opa/

pr/2011/January/11-opa-022.html. Section 351(c) outlaws attempts to murder a Member of Congress; section 1114

outlaws murder of federal officers or employees during or on account of the performance of their duties; section 1111

sets the penalties for violations of section 1114; section 1113 outlaws attempted murder of federal officers or

employees.

Mr. Loughner was initially indicted for attempting to murder a Member of Congress and for attempting to murder

federal employees in the performance of their duties, U.S. Dept. of Justice, Jared Lee Loughner Indicted, available at

http://www.justice.gov/opa/pr/2011/January/11-opa-072.html. He was charged in a superseding 49-count indictment

with attempted assassination of a Member of Congress (18 U.S.C. 351); murder of a federal employee (18 U.S.C.

1114); attempted murder of a federal employee (18 U.S.C. 1113), using a firearm in relation to a crime of violence (18

U.S.C. 924(d)); using a firearm to cause a death (18 U.S.C. 924(j); injuring a participant in a federally protected

activity (18 U.S.C. 245(b)(1)(B)); and killing a participant in a federally protected activity (18 U.S.C. 245(b)(1)(B)).

Available at http://www.justice.gov/usao/az/press_releases/2011/PR_03042011_Loughner_SupersedingIndictment.pdf.

“... [N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb....” U.S. Const.

Amend. V.

“It is black-letter law that an act defined as a crime by both national and state sovereignties is ‘an offense against the

peace and dignity of both and may be punished by each.’” United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 67

L.Ed. 314, T.D. 3433 (1922). This dual-sovereignty doctrine allows for a federal prosecution even after a prior state

prosecution for the same conduct. E.g., Abbate v. United States, 359 U.S. 187, 195-96, 79 S.Ct. 666, 3 L.Ed. 2d 729

(1959),” United States v. Gerhard, 615 F.3d 7, 25 (1st Cir. 2010); see also, United States v. Enas, 255 F.3d 662, 665-66

(9th Cir. 2001)(“The Double Jeopardy Clause, however, contains a significant exception. Multiple prosecutions are

permissible when they are carried out by separate sovereigns”).

See United States v. Nichols, 132 F.Supp.2d 931 (D.Colo. 2001)(denying a motion to vacate the conviction).

See Nichols v. Jackson, 55 P.3d 1044 (Okla. 2002)(post-conviction request to seal certain records).

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Murder or Attempted Murder of a Member of Congress and Other Federal Officials

Consequences of Seeking the Death Penalty

First degree murders committed in violation of 18 U.S.C. 1114 are punishable by death or

imprisonment for any term of years or for life. 6 The decision to seek the death penalty rests

ultimately with the Attorney General.7 A number of procedural consequences flow from the

prosecutor’s decision to seek the death penalty.

Notice

When the prosecutor believes the circumstances justify the death penalty, he must notify the court

and the defendant prior to trial or prior to the court’s acceptance of the defendant’s guilty plea, if

the defendant elects to forgo a trial.8 Federal law permits imposition of the death penalty when

authorized by statute as in the case of the first degree murder of a federal official or employee

during the performance of his duties.9 In such cases, imposition of the death penalty requires a

finding of at least one aggravating factor. 10 The statutory list of aggravating factors includes

instances, for example, when (1) the death occurred during the course of an assault on a Member

of Congress or some other designated felony; (2) the homicide was committed in a particular

heinous, cruel, or depraved manner; (3) a federal judge was a victim of the offense; (4) the

defendant killed or attempted to kill more than one person in a single criminal episode; or (5)

when “any other aggravating factor for which notice has been given exists.”11

Indictment

The Constitution affords defendants charged with a federal felony or capital offense the right to

grand jury indictment. 12 Although a defendant charged only with noncapital offenses may waive

the right to grand jury indictment, capital offenses will ordinarily be prosecuted by indictment.13

When the prosecutor intends to seek the death penalty, the indictment must include the

aggravating factors upon which the government intends to rely.14

18 U.S.C. 1114, 1111.

U.S. Dept. of Justice, U.S. Attorneys Manual §9-10.040. Guidelines in the U.S. Attorneys Manual outline the

procedure for review and recommendations relating to the decision to seek the death penalty in a capital case, id. at

§§9-10.010 et seq., available at http://www.justice.gov/usao/reading_room/foiamanuals.html.

18 U.S.C. 3593(a).

18 U.S.C. 3591(a)(2)(A).

18 U.S.C. 3593(e), 3594.

18 U.S.C. 3592(c), (c)(1), (c)(6), (14), (16).

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment

of a Grand Jury ...” U.S. Const. Amend. V.

F.R.Crim. P. 7(b); Matthews v. United States, 622 F.3d 99, 101-103 (2d Cir. 2010)(a defendant may waive

indictment under a plea agreement in a capital case when the agreement limits his sentence to a term of imprisonment).

“In the wake of Ring [Ring v. Arizona, 536 U.S. 584 (2002)], Supreme Court precedent now firmly establishes that

the mental culpability and aggravating factors required by the FDPA [18 U.S.C. 3591-3599] must—in addition to being

included in the government’s notice to seek the death penalty—be presented to a grand jury, charged in the indictment,

and proved beyond a reasonable doubt. But as we shall explain, even though this eliminates a background assumption

against which the FDPA was framed, it does not render the statute unconstitutional,” United States v. Sampson, 486

F.3d 13, 21 (1st Cir. 2007)(citing cases from other circuits in accord); cf., United States v. Mitchell, 502 F.3d 931, 97380 (9th Cir. 2007).

Given the time required for a thorough Justice Department review before deciding to seek the death penalty, the

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Murder or Attempted Murder of a Member of Congress and Other Federal Officials

Counsel

The defendant in capital cases is entitled, upon request, to the assignment of two counsel, at least

one of whom is “learned in the law applicable to capital cases.”15 The right attaches at least upon

indictment.16 Most appellate courts have concluded that the government’s decision not to seek the

death penalty extinguishes the statutory right.17 In addition to counsel, the court may authorize

payment for investigative, expert, and other services “reasonably necessary” for the defense of an

indigent defendant.18

Venue and Jury Impartiality

The Sixth Amendment guarantees the criminally accused “the right to a speedy and public trial,

by an impartial jury of the State and district wherein the crime shall have been committed.”19 In

doing so, it reinforces the declaration which appears earlier in Article III: “The trial of all Crimes,

except in Cases of Impeachment, shall be by Jury; and such Trials shall be held in the State where

the said Crimes shall have been committed.”20

In order to secure trial by an impartial jury in a high profile case, an accused may feel compelled

to not be tried in, or by a jury of, the place where the crime occurred. In rare instances, the

proximity, extent, and character of pretrial media coverage may be such that the courts will

presume that trial by an impartial jury in a particular location is impossible.21 The Federal Rules

of Criminal Procedure acknowledge such a possibility by providing that “Upon the defendant’s

motion, the court must transfer the proceeding against that defendant to another district if the

court is satisfied that so great a prejudice against the defendant exists in the transferring district

that the defendant cannot obtain a fair trial there.”22 The anticipated trial of Timothy McVeigh in

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aggravating factors may appear first in a superseding indictment that replaces the initial indictment.

18 U.S.C. 3005.

In re Sterling-Suarez, 306 F.3d 1170, 1173-175 (1st Cir. 2002).

E.g., United States v. Waggoner, 339 F.3d 915, 916-19 (9th Cir. 2003); United States v. Douglas, 525 F.3d 225, 23538 (2d Cir. 2008); United States v. Casseus, 282 F.3d 253, 256 (3d Cir. 2002); contra, United States v. Robinson, 275

F.3d 371, 384 (4th Cir. 2001).

18 U.S.C. 3599.

U.S. Const. Amend. VI.

U.S. Const. Art. III, §2, cl. 3.

“We overturned a ‘conviction obtained in a trial atmosphere that [was] utterly corrupted by press coverage....’ A

presumption of prejudice, our decisions indicate, attends only the extreme case,” Skilling v. United States, 130 S.Ct.

2896, 2915 (2010)(quoting Murphy v. Florida, 421 U.S. 794, 798-99 (1975)); see also Daniels v. Woodford, 428 F.3d

1181, (9th Cir. 2005)(“To support a change of venue motion, Daniels must demonstrate either actual or presumed

prejudice.... Prejudice is presumed only in extreme instances ‘when the record demonstrates that the community where

the trial was held was saturated with prejudicial and inflammatory media publicity about the crime.’ Three factors

should be considered in determining presumed prejudice: (1) whether there was a ‘barrage of inflammatory publicity

immediately prior to trial, amounting to a huge ... wave of public passion’; (2) whether the news accounts were

primarily factual because such accounts tend to be less inflammatory that editorials or cartoons; and (3) whether the

media accounts contained inflammatory or prejudicial material not admissible at trial”)(quoting Ainsworth v. Calderon,

138 F.3d 787, 795 (9th Cir. 1998)).

F.R.Crim.P. 21(a).

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Murder or Attempted Murder of a Member of Congress and Other Federal Officials

Oklahoma after the Oklahoma City bombing presented such a case.23 His actual trial in Denver

did not.24

Exceptional cases of extraordinary circumstances aside, however, the courts will ordinarily seek

other means to secure trial by an impartial jury—granting continuances, instructing prospective

jurors to avoid further pretrial publicity, imposing secrecy orders upon the participants, and

questioning potential jurors thoroughly to ensure their impartiality (voir dire)—before granting a

request for a change of venue as a last resort.25

Media Relations

Justice Department guidelines generally describe the types of information which prosecutors may

release concerning a criminal case and the types of prejudicial information which they should

not.26 Local Rules of Criminal Procedure of the U.S. District Court for Arizona contain similar

provisions applicable to prosecutors and defense counsel alike and authorize the court to make

special efforts in “widely publicized or sensational criminal case[s].”27

The courts are loath to deny the press and the public access to judicial proceedings and records,

particularly those that have historically been publicly available.28 Yet in the face of substantial

countervailing interests, they will close proceedings and seal records.29

In the Timothy McVeigh prosecution, the court took several steps in the name of jury impartiality

among others. It prohibited (1) court personnel from disclosing without court approval any

information related to the case that was not part of the public record; and (2) attorneys appearing

in the cases and anyone associated with them from public statements or leaking information

concerning (a) the defendants’ criminal record, character, or reputation; (b) the results of any tests

that the defendants had taken or refused to take, or any statements that the defendants had made

or refused to make to authorities; (c) the identity of any prospective witnesses or the specifics or

United States v. McVeigh, 918 F.Supp. 1467, 1469 (W.D.Okla. 1996). Mr. McVeigh was accused of murdering 168

men, women, and children, with injuring hundreds of others, and with causing over $650 million in property damage.

United States v. McVeigh, 153 F.3d 1166, 11779-184 (10th Cir. 1998).

“There have been very few cases in which a change of venue has been granted under Rule 21(a).... It should be

remembered that a change of venue is not the only remedy for prejudice. Where it is possible that the prejudice will

decrease with time, a continuance may be ordered.... a denial of a motion to transfer under Rule 21(a) may be, and quite

commonly is, without prejudice to renewal at the trial. The courts consider that the existence of prejudice can better be

determined by voir dire examination of potential jurors than by affidavits and speculation about the effect of publicity,”

Wright & Henning, 2 FEDERAL PRACTICE AND PROCEDURE : CRIMINAL 434, 433, 437-38 (4th Cir. 2009).

28 C.F.R. §50.2.

D.Ariz. Loc.R. LRCrim. 57.2.

Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 13 (1986)(“[T]he qualified First Amendment right to access to

criminal proceedings applies to preliminary hearings as they are conducted in California”); In re Copley Press, Inc.,

518 F.3d 1022, 1027 (9th Cir. 2008) (“[T]he public has a qualified right to read the transcripts of those portions of the

hearings on the motion to seal [plea agreement documents] that were open to the public”).

Gannett Co. v. DePasquale, 443 U.S. 368, 394 (1979)(“[W] are asked to hold that the Constitution itself gave the

petition [newspaper] an affirmative right to access to this pretrial [suppression] proceeding, even though all the

participants in the litigation agreed that it should be closed to protect the fair trial rights of defendants.... [W]e hold that

the Constitution provides no such right”); In re Copley Press, Inc., 518 F.3d at 1029 (internal citations omitted)(“In

addition to the public’s First Amendment right, the pubic also has a ‘common law’ right to ‘to inspect and copy public

records and documents,’ including the documents at issue here. However, this right ‘is not absolute’ and doesn’t apply

to ‘documents which have traditionally been kept secret for important policy reasons’”).

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Murder or Attempted Murder of a Member of Congress and Other Federal Officials

creditability of their anticipated testimony; (d) the prospect or specifics of any anticipated or

negotiated plea bargain; or (e) any speculation of the guilt, strength of evidence, or merits of the

case.30

The court also placed under seal (a) portions of Mr. Nichols’s suppression motion; (b) certain FBI

notes relating to its interview of Mr. Nichols; (c) portions of the defendants’ motions for

severance;31 (d) the information relating to the compensation for defense services provided prior

to trial; (e) transcripts of material witness proceedings; (f) motions and orders relating to Mr.

McVeigh’s conditions of confinement; and (g) proposed questionnaires for prospective jurors.32

In the Jared Loughner prosecution, the court only authorized the disclosure of sealed search

warrant material after the final indictment had been filed.33

Insanity Defense

The insanity defense is an affirmative defense which the defendant must establish by clear and

convincing evidence.34 It is available as a federal criminal defense, when at the time of the

commission of the offense, the defendant “as a result of a severe mental disease or defense, was

unable to appreciate the nature and quality or the wrongfulness of his acts.”35

A defendant must notify the prosecutor, if he wishes to assert the insanity defense at trial or to

introduce expert evidence of a mental disease or defect at trial or at his capital sentencing

hearing. 36 Notice of a defendant’s intent to claim an insanity defense triggers the obligation of the

court to refer the defendant for a psychiatric examination upon the motion of the prosecutor. 37

Competence to Stand Trial

The Constitution does not permit the criminal trial of a mentally incompetent defendant.38 It

requires that a defendant have the mental capacity “to understand the nature and object of the

proceedings against him, to consult with counsel, and to assist in the preparing of his defense.”39

The claim of incompetence to commit the offense in the form of an insanity defense notice raises

the question of a defendant’s competence to stand trial. Consequently, the Federal Rules authorize

the court, in the face of such a claim, to order a psychiatric examination of the accused.40 If the

court determines, after a hearing, that the defendant lacks the competence to stand trial, it may

United States v. McVeigh, 931 F.Supp. 756, 760 (D. Colo. 1996).

United States v. McVeigh, 119 F.3d 806, 809 (10th Cir. 1997).

United States v. McVeigh, 918 F.Supp. 1452, 1465-467 (W.D.Okla. 1996).

United States v. Loughner, ___ F.Supp.2d ___, ___ (D.Ariz. Mar. 9, 2011)(recognizing a qualified First Amendment

right of media access upon issuance of a final indictment to search warrants, supporting affidavits, and inventory of

seized material).

18 U.S.C. 17(b).

18 U.S.C. 17(a).

F.R.Crim.P. 12.2.

F.R.Crim.P. 12.2(c)(1)(B), 18 U.S.C. 4242.

Indiana v. Edwards, 554 U.S. 166, 170 (2008); United States v. No Runner, 590 F.3d 962, 964-65 (9th Cir. 2009).

Drope v. Missouri, 420 U.S. 162, 171 (1975); Maxwell v. Roe, 606 F.3d 561, 564 (9th Cir. 2010).

F.R.Crim.P. 12.2(c)(1)(A), 18 U.S.C. 4241(b).

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Murder or Attempted Murder of a Member of Congress and Other Federal Officials

commit him to the custody of the Attorney General for medical treatment.41 Under narrow

circumstances, such treatment may include involuntary medication designed to render a defendant

competent to stand trial.42

The court in the Jared Loughner prosecution granted the government’s motion for a psychiatric

examination to determine the defendant’s competence to stand trial.43 On May 25, 2011, the court

found the defendant incompetent to be tried at the time. 44

Victims’ Rights

Pretrial victims’ rights consist primarily of a right to notice, the right to confer, a right to attend,

and a right to be heard. For purposes of the federal victim rights statute, a victim is “a person

directly and proximately harmed as a result of the commission of a federal offense,” and includes

“[i]n the case of a crime victim who is under 18 years of age, incompetent, incapacitated, or

deceased, the legal guardians of the crime victim or the representatives of the crime’s estate,

family members, or any other persons appointed as suitable by the court.”45 On its face, the

definition does not include victims of state crimes.

The statute affords victims the right to “reasonable, accurate, and timely” notice of, and generally

not to be excluded from, any public judicial proceedings involving the offense.46 Victims enjoy a

reasonable right to confer with prosecutors.47 In capital cases, the U.S. Attorneys Manual instructs

United States Attorneys to consult with families of victims concerning the decision to seek the

death penalty and to notify them of the Attorney General’s decision.48 Victims also have a right to

be reasonably heard at public judicial proceedings involving the acceptance of an offender’s

plea.49 These rights preclude a court approved failure to notify victims until after a plea agreement

has been executed, 50 but they do not give victims the right to veto a proposed plea agreement.51

18 U.S.C. 4241, 4246.

Sells v. United States, 539 U.S. 166, 180-81 (2003)(emphasis in the original)(To approve such involuntary treatment,

“[f]irst, a court must find that important governmental interests are at stake. The Government’s interest in bringing to

trial an individual accused of a serious crime is important.... Second, the court must conclude that involuntary

medication will significantly further those concomitant state interests. It must find that administration of the drugs is

substantially likely to render the defendant competent to stand trial.... Third, the court must conclude that involuntary

medication is necessary to further those interests. The court must find that any alternative, less intrusive treatments are

unlikely to achieve substantially the same results.... Fourth, as we have said, the court must conclude that

administration of the drugs is medically appropriate, i.e., in the patient’s best medical interest in light of his medical

condition”).

United States v. Loughner, ___ F.Supp.2d ___, ___ (D.Ariz. Mar. 21, 2011).

Loughner ruled unfit for trial, Wash. Post, May 26, 2011, at A1.

18 U.S.C. 3771(e).

18 U.S.C. 3771(a)(2), (3). Victims also have the right to be protected from the accused, “to proceedings free from

unreasonable delay,” 18 U.S.C. 3771(a)(1), (7).

18 U.S.C. 3771(a)(5).

U.S. Attorneys Manual, §9-10,070.

18 U.S.C. 3771(a)(4).

In re Dean, 527 F.3d 391, 393-96 (5th Cir. 2008).

In re W.R. Huff Asset Management Co., 409 F.3d 555, 564 (2d Cir. 2005); United States v. BP Products North

American Inc., 610 F.Supp. 2d 655, 727 (S.D.Tex. 2009).

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Discovery

Both the prosecution and the defense enjoy pretrial discovery rights. The government’s failure to

advise the defendant of exculpatory evidence or of evidence that undermines the testimony of its

witnesses may undo the defendant’s conviction. 52 The prosecution has other disclosure

obligations under the Federal Rules, including providing the defense with earlier statements of the

defendant in its possession.53 Each side has an obligation to present, upon request, a summary of

expert witness testimony upon which they intend to rely.54

Trial

Rules govern the general attributes and procedures of a federal criminal trial. For example, the

federal rules ban cameras from the courtroom. 55 They assure the defendant the right to be present

at every stage of the trial, a right he may waive by choice or persistent disruptive behavior.56 They

supply the evidentiary standards within which a trial must be conducted.57 Yet application of the

rules and control of a federal criminal trial rests primarily with the trial judge. “[T]he trial judge

has the responsibility to maintain decorum in keeping with the nature of the proceeding; ‘the

judge ... is the governor of the trial for the purpose of assuring its proper conduct.’”58

Victims’ Rights

Traditionally, witnesses—even victims—could only be present at trial while they were testifying,

lest their testimony be influenced by what they heard before they took the stand.59 Federal law

now gives victims, even if they are also witnesses, “[t]he right not to be excluded from [trial],

unless the court, after receiving clear and convincing evidence, determines that testimony by the

victim would be materially altered if the victim heard other testimony at that proceeding.”60 In

capital cases, the right is reinforced by another statutory prohibition—one against victim

exclusion from a trial simply because the victim might provide an impact statement during a

subsequent sentencing proceeding. 61

Brady v. Maryland, 373 U.S. 83, 87 (1963); Giglio v. United States, 405 U.S. 150, 154-55 (1972); United States v.

Struckman, 611 F.3d 560, 570 n.4 (9th Cir. 2010); Libberton v. Ryan, 583 F.3d 1147, 1162-163 (9th Cir. 2009); see also

United States v. McVeigh, 954 F.Supp. 1454 (D.Colo. 1997).

F.R.Crim.P. 16.

Id.

F.R.Crim.P. 53(“Except as otherwise provided by a statute or these rules, the court must not permit the taking of

photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the

courtroom”).

F.R.Crim.P. 43.

F.R.Evid.

United States v. Young, 470 U.S. 1, 10 (1985).

VI WIGMORE ON EVIDENCE §§1837-1842 (1940 ed.).

18 U.S.C. 3771(4); see also In re Mikhel, 453 F.3d 1137, 1140 (9th Cir. 2006)(a trial court may bar a victim-witness

only upon a showing by clear and convincing proof that the victim-witness’s testimony will be materially altered as a

consequence of attendance).

18 U.S.C. 3510(b)(“Notwithstanding any statute, rule, or other provision of law, a United States district court shall

not order any victim of an offense excluded from the trial of a defendant accused of that offense because such victim

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Murder or Attempted Murder of a Member of Congress and Other Federal Officials

Sentencing

Capital Punishment

Special procedures apply after a defendant is found guilty of a federal capital offense. A

sentencing hearing is held before a jury to determine whether the defendant should be sentenced

to death. 62 First, in a murder case, the jury must determine whether the defendant acted with the

intent necessary to qualify for imposition of the death penalty.63 If it does so, the penalty may be

imposed only if the jury also finds one or more of a series of aggravating factors and finds that

the aggravating factor or factors outweigh any mitigating factors to an extent justifying a sentence

of death.64 As noted earlier, the statutory list of aggravating factors includes instances, for

example, when (1) the death occurred during the course of an assault on a Member of Congress of

some other designated felony; (2) the homicide was committed in a particular heinous, cruel, or

depraved manner; (3) a federal judge was a victim of the offense; (4) the defendant killed or

attempted to kill more than one person in a single criminal episode; or (5) when “any other

aggravating factor for which notice has been given exists.”65 Mitigating factors include, for

example, (1) the defendant’s impaired capacity; (2) the absence of a significant prior criminal

record; (3) commission of the offense “under severe mental or emotional disturbance.”66

Mitigating factors may also be found “in the defendant’s background, record, or character or any

other circumstance of the offense.”67

A federal death sentence is subject to appellate review. 68 If upheld, the defendant is committed to

the custody of the Attorney General for execution.69 The sentence of death, however, may not be

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may, during the sentencing hearing, testify as to the effect of the offense on the victim and the victim’s family or as to

any other factor for which notice is required under section 3593(a)”). Note that the statute does not speak of trial

witnesses who are victims. United States v. McVeigh, 958 F.Supp. 512, 515 (D. Colo. 1997).

18 U.S.C. 3593(b). The court may conduct the hearing without a jury, if the prosecutor and defendant agree, 18

U.S.C. 3592(b)(3).

18 U.S.C. 3591(a)(2)(“A defendant who has been found guilty of ... (2) any other offense for which a sentence of

death is provided, if the defendant, as determined beyond a reasonable doubt at the hearing under section 3593 – (A)

intentionally killed the victim; (B) intentionally inflicted serious bodily injury that resulted in the death of the victim;

(C) intentionally participated in an act, contemplating that the life of a person would be taken or intending that lethal

force would be used in connection with a person, other than one of the participants in the offense, and the victim died

as a direct result of the act; or (D) intentionally and specifically engaged in an act of violence, knowing that the act

created a grave risk of death to a person, other than one of the participants in the offense, such that participation in the

act constituted a reckless disregard for human life and the victim died as a direct result of the act, shall be sentenced to

death if, after consideration of the factors set forth in section 3592 in the course of a hearing held pursuant to section

3593, it is determined that imposition of a sentence of death is justified, except that no person may be sentenced to

death who was less than 18 years of age at the time of the offense”).

18 U.S.C. 3593(e); e.g., United States v. Mitchell, 502 F.3d 931 (9th Cir. 2007).

18 U.S.C. 3592(c), (c)(1), (c)(6), (14), (16).

18 U.S.C. 3592(a)(1), (5), (6).

18 U.S.C. 3592(a)(8).

18 U.S.C. 3595.

18 U.S.C. 3596.

Congressional Research Service

Murder or Attempted Murder of a Member of Congress and Other Federal Officials

carried out if the defendant lacks the mental capacity, as a result of mental disability, “to

understand the death penalty and why it was imposed.”70

Noncapital Sentencing

In a capital case when the jury finds the defendant eligible for the death penalty but fails to

unanimously recommend the death penalty, the court sentences the defendant to “life

imprisonment without possibility of release or some other lesser sentence.”71 When the

prosecution elects not to seek the death penalty and when the defendant is convicted of a

noncapital offense, the court sentences the defendant, without benefit of a jury.72

Although the federal Sentencing Guidelines are no longer binding, noncapital sentencing begins

there.73 The Guidelines provide a series of sentencing ranges beneath the statutory maximum for

the offense of conviction, calibrated to reflect the seriousness of the offense and the extent of the

defendant’s criminal record.74 A sentencing court, with reasonable justification, may sentence a

defendant outside the applicable Guideline recommended sentencing range.75

Victims’ Rights

Victims have a right to be reasonably heard during the capital sentencing hearing. 76 Victims of a

federal crime of violence are also entitled to an order of restitution, covering the cost of medical

expenses, rehabilitation costs, and, in the case of a homicide, funeral expenses.77 Victims do not

have a right to attend the execution of a defendant convicted of murdering a family member,

although they may do so at the discretion of the Director of the Bureau of Federal Prisons and, to

a more limited extent, at the discretion of the Warden. 78

18 U.S.C. 3596(c). The Eighth Amendment precludes execution of the mentally retarded or the insane, Atkins v.

Virginia, 536 U.S. 304, 318-21 (2002); Ford v. Wainwright, 477 U.S. 399, 410 (1986).

18 U.S.C. 3593(e), (d).

18 U.S.C. 3551.

Gall v. United States, 552 U.S. 38, 49 (2007)(“[A] district court should begin all sentencing proceedings by correctly

calculating the applicable Guidelines range”).

United States Sentencing Commission, GUIDELINES MANUAL, Ch.1, Pt. A (2010).

Gall v. United States, 552 U.S. at 51 (When reviewing a sentence, the appellate court “must first ensure that the

district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing to consider the §355(a) factors, selecting a sentence

based on clearly erroneous facts, or failing to adequately explain the chosen sentencing – including an explanation for

any deviation from the Guidelines range. Assuming that the district court’s sentencing decision is procedurally sound,

the appellate court should then consider the substantive reasonableness of the sentence imposed.... If the sentence is

within the Guidelines range, the appellate court may, but is not required to, apply a presumption of reasonableness”).

18 U.S.C. 3771(a)(4); see also F.R.Crim.P. 32(i)(4)(B).

18 U.S.C. 3771(a)(6), 18 U.S.C. 3663A.

28 C.F.R. §26.4(d), (c)(4)(i). A limited number of media representatives may also attend, but the execution may not

be televised or broadcast, 28 C.F.R. §26.4(c)(4)(ii), (f); see Entertainment Network Inc. v. Lappin, 134 F.Supp.2d 1002

(S.D. Ind. 2001)(denying declaratory and injunctive relief to permit the broadcasting of Timothy McVeigh’s

execution).

Congressional Research Service

Murder or Attempted Murder of a Member of Congress and Other Federal Officials

Author Contact Information

(name redacted)

Senior Specialist in American Public Law

[redacted]@crs.loc.gov, 7-....

Congressional Research Service

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