The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
Order Granting in Part Defendant's Motion for Scheduling Order
Defendant Robert John McGill moves the Court for a scheduling order which would afford him additional time to compile and present mitigating evidence to the United States Attorney and Attorney General's Capital Case Committee. The government has filed an opposition, and defendant has filed a reply.
A hearing was held before Chief Judge Irma E. Gonzalez on April 12, 2010. Upon consideration of the parties' arguments, for the reasons set forth herein, the Court GRANTS IN PART defendant's motion.
On July 17, 2009, Robert McGill was arrested and charged by complaint with murder in the second degree. On July 29, 2009, the grand jury returned an indictment charging Mr. McGill with murder in the second degree. The matter proceeded as a non-capital offense until January 6, 2010, when the government obtained a superseding indictment charging Mr. McGill with kidnapping and first degree murder, a crime punishable by death.
The Federal Death Penalty Act states that the death penalty may be sought for a capital offense whenever "the attorney for the government believes that the circumstances of the offense are such that a sentence of death is justified." 18 U.S.C. § 3593(a). However, according to the internal policies and procedures of the Department of Justice, commonly referred to as the "death penalty protocols," only the Attorney General can decide whether the government will seek the death penalty in any case. United States Attorney Manual ("U.S.A.M.") § 9-10.040. The protocols provide that, before the Attorney General decides whether to seek the death penalty, any potential capital case will be reviewed first by the local United States Attorney and then by the Attorney General's Capital Review Committee. U.S.A.M. § 9-10.050 and 9-10.120. The U.S. Attorney must give the defendant "a reasonable opportunity to present any facts, including any mitigating factors, for consideration...." Id. § 9-10.050. Defendant is similarly provided the opportunity to bring mitigating evidence to the attention of the Capital Review Committee before it makes its own recommendation. Id. § 9-10.120.
By letter dated March 5, 2010, the government notified defense counsel that they should submit any mitigating factors in writing to the U.S. Attorney by June 1, 2010. In addition, defense counsel would be permitted to make an oral presentation to the U.S. Attorney's Office Death Penalty Committee on after before June 15, 2010.*fn1
Defense counsel objected to the government's proposed timetable for presentation of mitigation evidence. By letter dated March 9, 2010, counsel for defendant proposed extending the date by which he would present mitigating evidence to the U.S. Attorney until January 2, 2011. When counsel were unable to reach any agreement regarding the timetable for defendant to submit mitigating evidence, defendant filed the current motion. In his motion, defendant asks the Court to set the following schedule:
1) January 14, 2011: written submission by the defendant to the United States Attorney of any reasons why the Government should not seek the death penalty;
2) January 28, 2011: meeting between defense counsel and the United States Attorney or her designees;
3) February 25, 2011: submission by the United States Attorney to the appropriate officials of the Department of Justice of a recommendation and any supporting documentation concerning whether the death penalty should be sought;
4) March 25, 2011: meeting between defense counsel and the Attorney General's Capital Case Committee; and,
5) June 30, 2011: filing of a notice under 18 U.S.C. § 3593(a) that the Government will seek the death penalty, or notification to the ...