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No. 01-1471

In the Supreme Court of the United States

UNITED STATES OF AMERICA, PETITIONER

v.

JOHN BASS

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

THEODORE B. OLSON
Solicitor General
Counsel of Record
MICHAEL CHERTOFF
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
MATTHEW D. ROBERTS
Assistant to the Solicitor
General
JOSEPH C. WYDERKO
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Whether, contrary to United States v. Armstrong, 517 U.S. 456, 465 (1996), the court of appeals erroneously permitted a capital defendant to obtain discovery on a claim of selective prosecution in the absence of evidence that "similarly situated individuals of a different race were not prosecuted."

2. Whether, contrary to McCleskey v. Kemp, 481 U.S. 279, 292, 294-295 & n.15 (1987), the court of appeals permitted a defendant to make a prima facie showing of discriminatory intent, necessary to justify discovery on a claim of selective prosecution, by relying on nationwide statistics that aggregate the individualized decisions made independently by multiple federal prosecutors across the country.

In the Supreme Court of the United States

No. 01-1471

UNITED STATES OF AMERICA, PETITIONER

v.

JOHN BASS

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of the United States of America, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Sixth Circuit in this case.

OPINION BELOW

The opinion of the court of appeals (App., infra, 1a-19a) is reported at 266 F.3d 532.

JURISDICTION

The judgment of the court of appeals was entered on September 25, 2001 (App., infra, 27a). A petition for rehearing was denied on December 7, 2001 (App., infra, 28a-29a). On February 22, 2002, Justice Stevens extended the time within which to file a petition for a writ of certiorari to and including April 6, 2002. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

In December 1998, a federal grand jury sitting in the Eastern District of Michigan returned a second superseding indictment charging respondent John Bass with conspiracy to distribute cocaine base in violation of 21 U.S.C. 846; four counts of intentionally killing an individual while engaged in a drug trafficking crime in violation of 21 U.S.C. 848(e)(1)(A); and three counts of murder in the course of using and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. 924(j). 12/9/98 Second Superseding Indictment.

On November 16, 2000, the government filed a notice pursuant to 18 U.S.C. 3593(a) that it would seek the death penalty against respondent for two of the firearms murders-the murders of Patrick Webb and Armenty Shelton. Respondent was subsequently charged in a third superseding indictment with conspiracy to possess with intent to distribute and to distribute more than five kilograms of cocaine and more than 50 grams of cocaine base in violation of 21 U.S.C. 846; murdering Patrick Webb in the course of using and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. 924(j); and murdering Armenty Shelton in the course of using and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. 924(j). 2/27/01 Third Superseding Indictment.

Respondent, who is black, alleged that the government had determined to seek the death penalty against him because of his race. He moved to dismiss the death penalty notice and, in the alternative, for discovery of information relating to the government's capital charging practices. The district court granted the motion for discovery and subsequently denied the government's motion for reconsideration. App., infra, 25a. When the government informed the district court that it would not comply with the discovery order, the court dismissed the death penalty notice. Id. at 26a. A divided court of appeals affirmed. Id. at 1a-19a.

1. The government's decision to seek the death penalty against respondent was made in accordance with a Department of Justice (DOJ) policy, instituted in January 1995 and commonly known as the death penalty protocol. DOJ, United States Attorneys' Manual §§ 9-10.010 et seq. (Sept. 1997) (USA Manual); see DOJ, The Federal Death Penalty System: A Statistical Survey (1988-2000), at 2 (Sept. 12, 2000) (DOJ Survey). Under the protocol, the decision whether to charge a defendant with a capital-eligible offense was, like the decision whether to charge a defendant with any offense, made by one of the 93 United States Attorneys throughout the country. Id. at 2 n.2, 9; App., infra, 2a. Once the defendant had been charged with a capital-eligible offense, however, the decision whether to seek the death penalty was made by the Attorney General. Ibid.; USA Manual § 9-10.020.

The protocol required the United States Attorneys to submit for review all cases in which they had charged a defendant with a capital-eligible offense, regardless whether the United States Attorney desired to seek the death penalty. USA Manual, supra. For each of those defendants, the United States Attorney was required to submit to DOJ's Criminal Division a death penalty evaluation form, a detailed prosecution memorandum, copies of the indictment, other documents or evidence as appropriate, and any written materials submitted by defense counsel in opposition to the death penalty. Id. § 9-10.040. The protocol expressly provided that "bias for or against an individual based upon characteristics such as race or ethnic origin may play no role in the decision whether to seek the death penalty." Id. § 9-10.080.

The Capital Case Unit of the Criminal Division, composed of attorneys with special expertise in capital prosecutions, reviewed the United States Attorney's submission and drafted an initial analysis and proposed recommendation. The case was then forwarded to the Attorney General's Review Committee on Capital Cases (Review Committee), which includes the Deputy Attorney General and the Assistant Attorney General of the Criminal Division or their designees. The Review Committee met with the Capital Case Unit Attorneys and the United States Attorney and his or her assistants. Defense counsel was afforded the opportunity to present reasons why the death penalty should not be sought. The Review Committee made an independent recommendation, and the Attorney General made the final decision whether to seek the death penalty. USA Manual § 9-10.050.

Under the protocol in effect at the time that the government determined to seek the death penalty against respondent, the individual United States Attorneys were not required to submit for review those cases in which they declined to charge the defendant with a capital-eligible offense. DOJ Survey 9. In addition, the individual United States Attorneys retained the authority to enter into plea agreements with any defendant that they had charged with a capital-eligible offense. Ibid. The Attorney General's approval of a plea agreement was not required. USA Manual § 9-10.100.1

2. DOJ conducted a statistical survey of the cases submitted for review under the protocol between January 1995 and July 2000. See generally DOJ Survey 1-43.2 During that period, United States Attorneys charged a total of 682 defendants with capital eligible crimes. Id. at 2. Of those defendants, 134 (20%) were white, 324 (48%) were black, and 195 (29%) were Hispanic. Id. at 6. The United States Attorneys subsequently withdrew 63 cases from review, and 31 cases were still pending at the end of the survey period. Id. at 24.3 The Attorney General authorized the death penalty for 159 of the remaining 588 defendants. Ibid. The Attorney General authorized the death penalty for 44 of 115 white defendants, 71 of 287 black defendants, and 32 of 160 Hispanic defendants. Ibid. Thus, the Attorney General authorized the death penalty for 38% of the white defendants, 25% of the black defendants, and 20% of the Hispanic defendants that she considered. Id. at 7.4

3. Respondent based his claim of selective prosecution in this case on statistics, including those in the DOJ Survey, that showed that nearly one-half of defendants who are charged with federal capital crimes and against whom the government ultimately seeks the death penalty are black, while blacks comprise only 38% of all federal prisoners. App., infra, 7a-9a. He also relied on public comments on the DOJ Survey made on the day of its release by then-Attorney General Janet Reno and then-Deputy Attorney General Eric Holder, as well comments made subsequently by Attorney General John Ashcroft. Id. at 9a-10a. The thrust of those comments was that the racial disparities in capital charging were disturbing and warranted further study to ensure that bias played no part in federal charging decisions. Ibid.

Respondent sought discovery of eight broad categories of information. He requested discovery of all correspondence from the United States Attorney's Office for the Eastern District of Michigan concerning the decision to seek the death penalty against him, including the death penalty evaluation form and the prosecution memorandum. He also requested all policies or manuals used by the United States Attorney for the Eastern District of Michigan to determine whether to charge a defendant under state or federal law, as well as a list, including the race of each defendant and the ultimate disposition of the case, of all death-eligible indictments originating in the Eastern District of Michigan since January 1, 1994. App., infra, 2a-3a.

In addition, respondent requested the materials for all cases submitted to capital case review between January 1, 1994, and September 1, 2000, including the caption, case number, a description of the offense, the ultimate disposition of the case, the death penalty evaluation form, the prosecution memorandum, and the non-decisional case identifying information form, for each case.5 Respondent also requested all standards, policies, practices, or criteria used by DOJ to guard against the influence of race in the death penalty protocol; any correspondence from DOJ to the United States Attorneys since January 1, 1994, on death penalty policies or requesting identification of cases for capital prosecution; and a list of all non-negligent homicide cases since January 1, 1994, in which a defendant was arrested and charged by federal or state authorities and in which the defendant could have been charged with a federal capital offense. App., infra, 3a.

4. After a hearing, the district court orally granted respondent's motion for discovery "on every particular." 10/24/00 Tr. 51. On October 26, 2000, the district court entered a written order requiring the government to provide respondent with the requested materials within 30 days. App., infra, 20a-24a. On December 20, 2000, the court denied the government's motion for reconsideration. Id. at 25a. After the United States Attorney's Office informed the court that it would not comply with the discovery order, respondent moved to dismiss the capital counts. On January 10, 2001, the court entered an order dismissing the death penalty notice. Id. at 26a.

5. A divided panel of the court of appeals affirmed. App., infra, 1a-19a. The court acknowledged that, under United States v. Armstrong, 517 U.S. 456 (1996), a defendant who seeks discovery on a claim of selective prosecution must show some evidence of both discriminatory effect and discriminatory intent. App., infra, 7a. The court concluded that respondent had shown evidence of discriminatory effect based on statistics from the U.S. Sentencing Commission and the DOJ Survey. See id. at 7a-11a. The court explained that "the evidence shows that although whites make up the majority of all federal prisoners, they are only one-fifth of those charged by the United States with death-eligible offenses. The United States charges blacks with a death eligible offense more than twice as often as it charges whites." Id. at 11a.

The court rejected the government's explanation that respondent had presented no evidence, as required by Armstrong, 517 U.S. at 465, that the white persons who were not charged with death-eligible offenses were "similarly situated." App., infra, 11a-12a. Although the court did not point to evidence of similarly situated white persons who were not charged, it reasoned that the "similarly situated" requirement was satisfied by evidence that the United States enters plea bargains with one-half of the white defendants against whom it sought the death penalty, but only one-quarter of the black defendants against whom it sought the death penalty. Id. at 12a.

The court of appeals also found, based on the same statistics, that respondent presented "some evidence" of discriminatory intent. App. infra, 12a-13a. The court found corroboration for that conclusion in statements by the former Attorney General and former Deputy Attorney General that the possibility of racial bias in federal capital charging decisions warranted further study. Id. at 13a.

The court rejected the government's argument, based on McCleskey v. Kemp, 481 U.S. 279, 294-295 & n.15 (1987), that nationwide statistics were not probative of discriminatory intent on the part of the United States Attorney who made the charging decision in respondent's case. App., infra, 13a-14a. The court reasoned that, although McCleskey would defeat respondent's selective prosecution claim if he was unable to adduce additional evidence after discovery, it did not "pose any bar to [respondent] at this preliminary stage." Id. at 14a.

The court of appeals declined to consider the government's position that certain documents were irrelevant, non-existent or already in respondent's possession, because the United States had refused to provide the documents to the district court for in camera review that would have enabled it to evaluate that claim. The court noted that this refusal had also prevented the district court from evaluating the government's claims of privilege. The court therefore affirmed the district court's discovery order and remanded to the district court "with instructions to allow the United States to produce the documents for an in camera review." App., infra, 15a. The court noted that, "[i]f the United States again fails to comply, the district court remains free to impose whatever sanction it deems appropriate." Ibid.6

Senior Judge Nelson dissented from the court's decision to affirm the discovery order. He explained that the essence of respondent's claim was that "the decision of the U.S. Attorney's Office to bring federal death-eligible charges against him" was racially motivated, App., infra, 16a, but that the DOJ Survey refutes any inference that then-Attorney General Reno, who authorized the filing of the death penalty notice in respondent's case, was guilty of racial discrimination against African Americans, because the survey indicates that she authorized the death penalty against a higher percentage of white defendants than black defendants. He further noted that respondent "is not alleging that the office of the U.S. Attorney for * * * the Eastern District of Michigan * * * declined to negotiate a plea bargain with him because of his race." Ibid.

Judge Nelson concluded that the district court abused its discretion in granting respondent discovery on his claim because there is a "complete absence of any evidence that the U.S. Attorney's Office failed to initiate capital-eligible prosecutions against individuals whose situations were similar to that of [respondent] but whose race was different." App., infra, 17a (citing Armstrong, 517 U.S. at 465, 470). Noting that concern expressed by DOJ officials about the national statistics and the need for further study was not evidence of any improper motive of the United States Attorney's Office in respondent's case, Judge Nelson also found "no evidence here of a racially discriminatory motive." Id. at 19a.

REASONS FOR GRANTING THE PETITION

The court of appeals' decision is flatly inconsistent with two decisions of this Court. First, the court of appeals' decision nullifies this Court's holding in United States v. Armstrong, 517 U.S. 456, 465 (1996), that discovery may not be ordered on a claim of selective prosecution unless the defendant presents "some evidence" that "similarly situated individuals of a different race were not prosecuted." Although the court of appeals purported to apply that requirement, the court inexplicably found the requirement to be satisfied by statistics that have no relevance to the discriminatory conduct alleged by respondent. Second, the court's decision completely disregards this Court's holding in McCleskey v. Kemp, 481 U.S. 279, 292, 294-295 & n. 15 (1987). Contrary to that holding, the court of appeals relied on aggregate, national statistics rather than requiring facts that bear on the individualized decisions of the prosecutors in this case. The upshot is that the court eviscerated the "rigorous standard" for discovery formulated in Armstrong. 517 U.S. at 468.

The court of appeals' decision trenches on the core prosecutorial function of the Executive Branch and threatens to stop federal death penalty prosecutions in their tracks. The decision requires the government to produce thousands of highly sensitive, internal documents concerning the Attorney General's review of hundreds of capital cases over six years. Production of those documents would improperly intrude on the Executive's Article II function of deciding when criminal prosecution is warranted and would stifle the full and frank internal decision-making that is especially critical in capital cases. If the decision of the court of appeals is permitted to stand and is followed by other courts, the government will be forced to make the untenable choice of either exposing its highly sensitive internal prosecutorial deliberations to public view or abandoning pursuit of the death penalty in cases for which that penalty has been authorized by Congress and approved by the Attorney General. Review by this Court and reversal of the erroneous judgment below is therefore warranted.

I. THE DECISION OF THE COURT OF APPEALS DIRECTLY CONTRADICTS THIS COURT'S DECISIONS

A. The Court Of Appeals' Decision Is Flatly Inconsistent With United States v. Armstrong

In United States v. Armstrong, 517 U.S. 456 (1996), this Court held that a defendant raising a selective prosecution claim must satisfy a "rigorous standard" to obtain discovery. Id. at 468. In particular, a defendant is not entitled to discovery unless he makes a threshold showing of "'some evidence tending to show the existence of the essential elements of the defense,' discriminatory effect and discriminatory intent." Id. at 468 (quoting United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974)). The Court further held that, in order to show some evidence of discriminatory effect, the defendant "must show that similarly situated individuals of a different race were not prosecuted." Id. at 465.

The court of appeals' holding that respondent was entitled to discovery on his selective prosecution claim contravenes Armstrong's unequivocal holding because respondent presented no evidence that the United States Attorney for the Eastern District of Michigan failed to charge similarly situated white defendants with capital-eligible offenses or that the Attorney General declined to approve the death penalty for similarly situated white defendants. The court of appeals found the necessary evidence of discriminatory effect based on no more than DOJ's nationwide survey showing that black defendants were charged with capital-eligible offenses more than twice as often as white defendants. App., infra, 11a; see DOJ Survey 6 (of 682 defendants charged with capital-eligible offenses between 1995 and 2000, 134 (20%) were white, 324 (48%) were black, and 195 (29%) were Hispanic). Respondent, however, produced no evidence that the United States Attorney for the Eastern District of Michigan, who brought the charges against respondent-or any other federal prosecutor-could have, but did not, bring capital-eligible charges against similarly situated white defendants.

The DOJ Survey cannot satisfy respondent's burden. Because the data submitted by United States Attorneys for the initial DOJ Survey did "not include information regarding the entire pool of potential capital-eligible defendants," those data shed no light whatsoever on whether any white defendants who were similarly situated to black defendants were not charged with capital-eligible offenses. DOJ Survey 10. Thus, the statistics on national charging practices in the DOJ Survey do not make out the "credible showing of different treatment of similarly situated persons" based on race required to warrant discovery. Armstrong, 517 U.S. at 470.

In fact, data collected subsequent to the initial survey (which were released after the district court's decision and provided to the court of appeals) indicate that white defendants who were similarly situated to black defendants were no less likely to be charged with capital offenses. After the initial survey was released, DOJ asked the United States Attorneys to submit information concerning cases in their offices in which the facts would have supported a capital charge, but the defendants were not charged with capital crimes. That information, when combined with the 682 defendants included in the initial survey, produced a broader pool of 973 potential capital defendants. Of those 973 defendants, 17% (166) were white, 42% (408) were black, and 36% (350) were Hispanic. Capital charges were brought and the case was submitted for review for 81% of the white defendants, 79% of the black defendants, and 56% of the Hispanic defendants. The Attorney General ultimately decided to seek the death penalty for 27% of the white defendants, 17% of the black defendants, and 9% of the Hispanic defendants. DOJ Supp. Survey 9-10.

The court of appeals did not advert to the supplemental survey results, but instead relied on incomplete statistics from which the court drew inferences that are now known to be incorrect. But even without considering the additional data before the court of appeals, based solely on the record before the district court, it is clear that there was no evidence of "similarly situated" white defendants who were not charged with death-eligible offenses.

Nor does the DOJ Survey provide any evidence that the former Attorney General, who authorized the government to seek the death penalty against respondent, declined to authorize the death penalty for white defendants who are similarly situated to respondent. The survey shows that the former Attorney General authorized the death penalty for 71 out of 287 black capital-eligible defendants and for 44 out of 115 white capital-eligible defendants. DOJ Survey 24. Thus, she authorized the death penalty for a higher percentage of white defendants (38%) than black defendants (25%). Id. at 7. Those statistical findings do not amount to any showing-much less "a credible showing"-that the former Attorney General's actions had a discriminatory effect. Armstrong, 517 U.S. at 470.

Instead of adhering to Armstrong's requirement that respondent show that similarly situated white defendants were not charged with capital-eligible offenses by the United States Attorney or authorized for the death penalty by the Attorney General, the court of appeals seized upon a statistic unrelated to respondent's allegations of discrimination-the fact that "the United States enters plea bargains with one in two whites; it enters plea bargains with one in four blacks." App., infra, 12a. The DOJ Survey does show that 48% of white defendants authorized for the death penalty entered plea bargains while only 25% of black defendants authorized for the death penalty entered plea bargains. DOJ Survey 31-32. Respondent, however, has never claimed that he was not offered a plea bargain because of his race. See App., infra, 16a. Indeed, respondent could not make that claim because he was offered a plea bargain but declined it.7

Because respondent cannot allege discrimination in the plea bargaining process, and the statistics in the DOJ Survey refute the possibility that the former Attorney General discriminated against minorities in determining whether to authorize the death penalty, respondent's theory is reduced to a claim of discrimination in the initial charging decision by the United States Attorney. The plea bargaining statistics, however, reflect the government's interaction with defendants after they had already been charged with capital-eligible offenses and the Attorney General had authorized the government to seek the death penalty against them. Those statistics therefore shed no light whatsoever on whether there were white defendants similarly situated to respondent who could have been, but were not, charged with capital-eligible offenses at the outset.

As a matter of logic, Armstrong's requirement that the defendant make "a credible showing of different treatment of similarly situated persons" must demand a showing of different treatment that is relevant to the claim of selective prosecution that the defendant is actually making. Armstrong, 517 U.S. at 470. In the absence of any relevant evidence of different treatment of similarly situated persons here, Armstrong dictates that respondent was not entitled to discovery.

B. The Court Of Appeals' Decision Violates The Teaching Of McCleskey v. Kemp

The court of appeals' analysis in this case suffers from still another fatal flaw. In McCleskey v. Kemp, 481 U.S. 279 (1987), this Court rejected a capital defendant's claim that a state-wide study established that the State's capital sentencing process was administered in a racially discriminatory manner. The Court concluded that a "discriminatory purpose" could not be inferred from the study's evidence of a state-wide disparate effect because the disparate effect resulted from the individualized and independent decisions of the many different prosecutors within the State. Id. at 295 & n.15. The Court explained that "decisions whether to prosecute and what to charge necessarily are individualized and involve infinite factual variations * * *. Thus, any inference from statewide statistics to a prosecutorial 'policy' is of doubtful relevance." Ibid.; see id. at 296 & n.17. The Court emphasized that a defendant must show that "the decisionmakers in his case acted with discriminatory purpose" in order to show intentional discrimination. Id. at 292.

Here, respondent produced no evidence that the United States Attorney for the Eastern District of Michigan, who made the decision to charge him with a capital-eligible offense, acted with discriminatory purpose. Nor did he produce any evidence that the former Attorney General, who authorized the government to seek the death penalty in his case, acted with discriminatory purpose. The court of appeals nonetheless found that "[t]he racial disparities identified by [respondent] in the death penalty charging phase" constituted some evidence of discriminatory purpose. App., infra, 13a.

The racial disparities identified by respondent in the death penalty charging phase are, however, the same sort of statistical data that the Court found insufficient in McCleskey to establish purposeful discrimination. The nationwide statistics on which respondent relies implicate the entire range of discretionary factors considered, individually and in isolation, by 93 separate United States Attorneys across the country, who independently decided whether or not to charge defendants with capital-eligible offenses. The statistics show that, over a five year period, those 93 United States Attorneys, independently making decisions involving infinite factual variations, collectively charged twice as many black defendants as white defendants with capital-eligible offenses. That evidence, however, does not amount to a credible showing that the United States Attorney for the Eastern District of Michigan acted with discriminatory purpose in charging respondent with a capital-eligible offense in his case. Nor do those statistics amount to a credible showing that the former Attorney General, who played no role at all in the charging decisions under the death penalty protocol, acted with a discriminatory purpose in authorizing the death penalty for respondent.

The court of appeals held that McCleskey is inapplicable here because McCleskey addressed a selective prosecution claim on the merits while this case is at the discovery stage. App., infra, 13a-14a. The difference in procedural posture, however, does not negate McCleskey's fundamental teaching that a defendant must show that "the decisionmakers in his case acted with discriminatory purpose" in order to show intentional discrimination, 481 U.S. at 292, and that discriminatory purpose cannot be inferred from evidence of a disparate effect that results from independent decisions by multiple decision-makers. Id. at 295 & n.15, 296 n.17. Although, under Armstrong, 517 U.S. at 468, a defendant need only show "some evidence" of discrimination to obtain discovery, McCleskey still requires that this evidence tend to show that "the decisionmakers in his case acted with discriminatory purpose." 481 U.S. at 292. Respondent made no such showing here.

The court of appeals also perceived evidence of discriminatory intent at the charging stage in statements by the present and former Attorneys General and the former Deputy Attorney General that the possibility of racial bias in federal capital charging decisions warranted further study. App., infra, 13a-14a. As Judge Nelson pointed out in his dissent, however, expressions of concern about the national statistics in the DOJ Survey and of an interest in further study of the circumstances underlying some of the statistics do not support any inference that the United States Attorney for the Eastern District of Michigan acted with a discriminatory purpose when he charged respondent with capital-eligible offenses in this case. Id. at 16a. Moreover, the former Attorney General's call for more study to ensure that racial discrimination plays no part in the federal charging process demonstrates precisely the opposite of evidence that she "selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group." McCleskey, 481 U.S. at 298 (quoting Personnel Adm'r v. Feeney, 442 U.S. 256, 279 (1979)).

II. THE COURT OF APPEALS' DECISION INTRUDES ON CORE EXECUTIVE FUNCTIONS AND THREATENS UNWARRANTED AND SERIOUS DISRUPTION OF FEDERAL DEATH PENALTY PROSECUTIONS

The court of appeals' decision requires the government to produce a vast array of highly sensitive, internal deliberative documents about the Attorney General's process of reviewing capital cases. The discovery order encompasses thousands of documents relating to hundreds of cases submitted for capital review over almost six years, including the prosecution memoranda. App., infra, 20a-23a. Assembly and production of those documents for in camera review by the district court would be time-consuming and highly burdensome. Production of the documents would also result in substantial delay of the prosecution. "If discovery is ordered, the Government must assemble from its own files documents which might corroborate or refute the defendant's claim. Discovery thus imposes many of the costs present when the Government must respond to a prima facie case of selective prosecution." Armstrong, 517 U.S. at 468.

Production of the internal deliberative documents at issue here would also interfere with the prosecutorial decisionmaking process in capital cases, thus trenching on the separation of powers. The decision whether to prosecute is "a core executive constitutional function" that "courts are 'properly hesitant to examine.'" Armstrong, 517 U.S. at 465 (quoting Wayte v. United States, 470 U.S. 598, 608 (1985)). As this Court has recognized, "the decision to prosecute is particularly ill-suited to judicial review" because it is based on factors that "are not readily susceptible to the kind of analysis the courts are competent to undertake." Wayte, 470 U.S. at 607. Moreover, judicial inquiry into the prosecutorial decision "threatens to chill law enforcement by subjecting the prosecutor's motives and decisionmaking to outside inquiry, and may undermine the prosecutorial effectiveness by revealing the Government's enforcement policy." Armstrong, 517 U.S. at 465 (quoting Wayte, 470 U.S. at 607). Full and frank internal consideration by the Executive whether to seek the death penalty in a given case is particularly important "[b]ecause the death penalty is unique 'in both its severity and its finality.'" Monge v. California, 524 U.S. 721, 732 (1998) (quoting Gardner v. Florida, 430 U.S. 349, 357 (1977) (plurality opinion)).

The "rigorous standard" for discovery formulated in Armstrong was designed to weed out unsubstantiated claims precisely in order to avoid unnecessary imposition of those undesirable consequences. 517 U.S. at 468. The court of appeals' evisceration of the Armstrong standard in this case presents the government with the dilemma of either accepting the disruption of the frank and orderly prosecutorial decision-making process that will result from the release of voluminous internal decision-making documents or abandoning the pursuit of the death penalty in a case in which that penalty has been authorized by Congress and determined to be appropriate by the Attorney General. Forcing the government to that choice undermines Congress's goal to ensure that defendants who commit grave crimes like the murders respondent is alleged to have committed receive the ultimate punishment. And it simultaneously undermines the Executive's purpose in adopting the death penalty protocol-to promote consistent and even-handed application of that punishment.

Those potential adverse consequences are not limited to this case. Indeed, if the court of appeals' flawed analysis were followed by the other courts of appeals, it could ultimately put the government to the choice of forgoing the death penalty in federal prosecutions or exposing the prosecutorial decision-making process to scrutiny by district courts and defendants in a multitude of capital cases. Under the court of appeals' analysis, the statistics in the DOJ Survey and the public comments of DOJ officials warrant discovery on a selective prosecution claim by any non-white defendant in any federal death penalty prosecution. Thus, any federal capital defendant who is a minority would be entitled to have the notice of intent to seek the death penalty against him dismissed unless the government complied with the same discovery ordered by the district court here. The government therefore could not pursue the death penalty against any minority defendant unless it was prepared to comply with the discovery order. And the government could not pursue the death penalty against only white defendants without exposing itself to equal protection challenges by those defendants. Thus, the decision of the court of appeals, if it is allowed to stand, has the potential to disrupt all federal capital cases, thereby frustrating Congress's determination that the death penalty is an appropriate penalty for certain extremely serious federal crimes.8

CONCLUSION

The petition for a writ of certiorari should be granted. The Court may wish to consider summary reversal of the decision of the court of appeals.

Respectfully submitted.

THEODORE B. OLSON
Solicitor General
MICHAEL CHERTOFF
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
MATTHEW D. ROBERTS
Assistant to the Solicitor
General
JOSEPH C. WYDERKO
Attorney

APRIL 2002

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1 In June 2001, DOJ revised the protocol to require United States Attorneys to submit for review cases in which a capital-eligible offense could be charged as well as cases in which a capital-eligible offense is charged. USA Manual § 9-10.040 (June 7, 2001 Bluesheet) (USA Manual Bluesheet); DOJ, The Federal Death Penalty System: Supplementary Data, Analysis and Revised Protocols for Capital Case Review 18 (June 6, 2001) (DOJ Supp. Survey). The protocol was also revised at that time to require the Attorney General's approval of any plea agreement under which the government agreed not to seek the death penalty. USA Manual Bluesheet § 9-10.100; DOJ Supp. Survey 18.

2 The survey also reviewed cases submitted under the procedure in effect before January 1995. See DOJ Survey 3. Under that procedure, the United States Attorneys submitted for review only those cases in which the United States Attorney recommended seeking the death penalty. See id. 1-2. Because the statistics on the prior procedure are not at issue in this case, they are not discussed in this petition.

3 Of the 63 defendants whose cases were withdrawn, 58 entered into plea agreements. Eight (14%) of those were white, 27 (47%) were black, and 20 (34%) were Hispanic. DOJ Survey 31 n.26. The United States Attorneys also entered into plea agreements with 51 of the 159 defendants for whom the Attorney General had authorized the death penalty. Plea agreements were reached with 48% of the white defendants (21 out of 44 authorized), 25% of the black defendants (18 out of 71 authorized), and 28% of the Hispanic defendants (9 out of 32 authorized). Id. at 32.

4 The rates at which the United States Attorneys and the Capital Case Review Committee recommended the death penalty were similar. The United States Attorneys recommended the death penalty for 36% of the white defendants, 25% of the black defendants, and 20% of the Hispanic defendants. The Review Committee recommended the death penalty for 40% of the white defendants, 27% of the black defendants, and 25% of the Hispanic defendants. DOJ Survey 7.

5 The non-decisional case identifying information form is a form submitted by the United States Attorney that identifies the race or ethnic origin of the defendant and the victim. That form is not provided to the Review Committee, the Capital Case Unit attorneys who assist the Review Committee, or the Attorney General. The form is provided by the United States Attorney under separate cover to paralegal assistants in the Capital Case Unit who collect statistics on the federal death penalty process. DOJ Survey 3.

6 The court of appeals did not vacate the district court's order dismissing the notice of intent to seek the death penalty. On remand, the government indicated to the district court that it did not intend to produce the documents for in camera review. See Motion and Brief for Continuance of Trial Date and Stay of All Proceedings in the District Court 3. The district court therefore left in place its order dismissing the death penalty notice, and indicated to counsel that it would proceed with a noncapital trial. Id. at 4. The district court subsequently granted the government's motion to stay the trial pending this Court's disposition of the instant petition for a writ of certiorari. 3/1/02 Order.

7 On May 8, 2000, respondent was scheduled to plead guilty pursuant to a plea agreement that required his cooperation, but he declined to enter the plea when he learned that his cooperation included testifying against his brothers. The government provided the court of appeals with a copy of the aborted plea agreement on the date of the oral argument in the court of appeals. See Gov't Pet. for Reh'g En Banc 2-3.

8 Outside of this case, the efforts of capital defendants to obtain discovery or to support a claim of selective prosecution based on the DOJ Survey have been widely rebuffed. See, e.g., United States v. Jones, No. 01-10142, 2002 WL 464678, at *5-*6 (5th Cir. Mar. 27, 2002) (rejecting claim of selective prosecution absent proof that "Jones was singled out for prosecution under the FDPA but that others similarly situated were not"; emphasizing that "mere statistical evidence of racial disparity is usually per se insufficient to support an inference of any 'unacceptable risk of racial discrimination in the administration of capital punishment" since "criminal defendants are closely and individually scrutinized on a variety of bases"); United States v. Minerd, 182 F. Supp. 2d 459, 463-467 (W.D. Pa. 2002) (rejecting court of appeals' analysis in this case; refusing discovery because "Minerd [has] failed to produce 'some evidence' that the decision to seek the death penalty * * * was made with discriminatory purpose or that it had a discriminatory effect"); United States v. Edelin, 134 F. Supp. 2d 59, 86 (D.D.C. 2001) ("The Court will not ignore the Supreme Court's decision in McCleskey v. Kemp and find that the statistics included in the DOJ Study are sufficient evidence to support the defendant's claim of racial discrimination in the government's capital charging practices."); United States v. Bin Laden, 126 F. Supp. 2d 256, 263 (S.D.N.Y. 2000) (finding DOJ Survey did not provide evidence that defendants "have been treated differently from persons of other races who are comparably situated"). Requests for discovery to support a selective prosecution claim are not uncommon in death penalty prosecutions. See United States v. Cooper, 91 F. Supp. 2d 90, 114-116 (D.D.C. 2000); United States v. Gilbert, 75 F. Supp. 2d 12, 13-16 (D. Mass. 1999); United States v. Cuff, 38 F. Supp. 2d 282, 286-287 (S.D.N.Y. 1999); United States v. Holloway, 29 F. Supp. 2d 435, 438-442 (M.D. Tenn. 1998); United States v. Roman, 931 F. Supp. 960, 967-968 (D.R.I. 1996); United States v. Nguyen, 928 F. Supp. 1525, 1544-1545 (D. Kan. 1996); United States v. DesAnges, 921 F. Supp. 349, 357-358 (W.D. Va. 1996); United States v. Walker, 910 F. Supp. 837, 858-860 (N.D.N.Y. 1995).

9 During his confirmation hearings, John Ashcroft expressed similar concern over the Survey's results, stating that the evidence of racial disparity in the federal death penalty "troubled [him] deeply."

APPENDIX A

 

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT.

No. 01-1213.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT

v.

JOHN BASS, DEFENDANT-APPELLEE

Argued June 14, 2001

Decided and Filed Sept. 25, 2001.

OPINION

Before: MARTIN, Chief Judge; NELSON, Circuit Judge, RICE, Chief District Judge*

BOYCE F. MARTIN, JR., Chief Judge.

On December 8, 1998, a federal grand jury returned a second superseding indictment charging defendant John Bass with the intentional firearm killing of two individuals. Shortly thereafter, the United States filed its notice of intent to seek the death penalty on those charges. Bass moved to dismiss the death penalty

* Hon. Walter H. Rice, Chief United States District Judge for the Southern District of Ohio, sitting by designation.

notice and, in the alternative, requested discovery pertaining to the United States's capital charging practices. The district court granted Bass's discovery request and, after the United States refused to comply with the order, dismissed the death penalty notice. We now affirm the district court's discovery order, and remand to allow the United States to submit the requested materials for an in camera review.

I.

According to a Department of Justice report, "The Federal Death Penalty System: A Statistical Survey" (September 12, 2000), all death-eligible charges brought by the United States since 1995 are subjected to the Department's death penalty decision-making procedures. Under the protocol, the individual United States Attorneys offices retain discretion in only three areas: whether to bring federal charges or defer to state prosecutions, whether to charge defendants with a capital-eligible offense, and whether to enter into a plea agreement. Otherwise, the sole power to authorize seeking the death penalty lies with the Attorney General. Once the Attorney General authorizes seeking the death penalty, the United States must file a notice of its intent to do so. See 18 U.S.C. § 3593(a). Each time the United States charges a defendant with a death-eligible crime, it must submit specific forms, including a recommendation on whether to seek the death penalty, a "Death Penalty Evaluation Form," and a memorandum outlining the theory of liability, the facts and evidence, including any evidence relating to any aggravating or mitigating factors, the defendant's background and criminal history, the basis for federal prosecution and other relevant information. See U.S. Attys. Man. § 9-10.040.

Bass requested from the Michigan United States Attorney's office all such materials relating to his prosecution, all policies or manuals used in the Eastern District of Michigan to determine whether to charge defendants federally, and a list of all death-eligible defendants in that district since January 1, 1995, including each defendant's race, and the ultimate disposition of each case. Bass also requested all materials submitted to the Attorney General for death-eligible prosecutions between January 1, 1995 and September 1, 2000, as well as captions and case numbers of such cases, a description of the offense charged, and the ultimate disposition of the case. Finally, Bass requested all standards, policies, practices, or criteria employed by the Department of Justice to guard against the influence of race in the death penalty protocol, any correspondence between the Department of Justice and the United States Attorneys regarding such policies or requesting identification of death-eligible defendants, and a list of all nonnegligent homicide cases throughout the United States since January 1, 1995, in which one or more offenders were arrested and charged and in which the facts would have rendered the offender eligible for the death penalty. As evidence in support of his discovery motion, Bass introduced, among other studies, the Department of Justice's Survey. Bass also introduced public comments regarding the Survey made on the day of its release by then-Attorney General Janet Reno and then-Deputy Attorney General Eric Holder, as well as comments by the current Attorney General, John Ashcroft. The United States opposed Bass's motion on the grounds that the requested information was protected by both the work-product and deliberative process privileges, that Bass had failed to make the evidentiary showing necessary to obtain further discovery, and that the requested materials were either non-existent or already in Bass's possession.

On October 24, 2000, following a hearing on Bass's motion, the district court found that he had presented sufficient evidence of racial bias in the death-penalty decision process to justify further discovery. The district court, noting that the United States did not offer any of the allegedly privileged materials for in camera review, further found that any privileges that may have attached to the materials were outweighed by the constitutional interests implicated by Bass's allegations and the death penalty context. Finally, it cited 18 U.S.C. § 3593(f), "Special precaution to ensure against discrimination," which requires a jury to determine that its individual members would have imposed a death sentence regardless of the defendant's race as a prerequisite to imposing such a sentence under Section 3593(e). The district court noted that for Section 3593(f) to have its intended effect of ensuring that a defendant's race plays no role in his death sentence, discovery of the sort requested by Bass must be allowed.

The United States refused to comply with the discovery order. On January 10, 2001, the district court sanctioned the United States by dismissing its notice of intent to seek the death penalty. The United States timely appealed.

II.

As an initial matter, we agree with the United States that we have jurisdiction to review the district court's pre-trial discovery order because that court's dismissal of the death penalty notice constitutes a final, appealable order under 18 U.S.C. § 3731. Under Section 3731, "an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information. . . ." We have previously allowed the United States to appeal, under Section 3731, pre-trial discovery rulings. See, e.g., United States v. Presser, 844 F.2d 1275, 1280 (6th Cir. 1988). In Presser, we exercised jurisdiction over the United States's appeal from an order granting a defendant's discovery request because the district court indicated that if the United States failed to comply, it would suppress the relevant evidence, which would likely result in dismissal of the indictment. Here, the United States's failure to comply with the district court's discovery order resulted in dismissal of the death penalty notice-in effect, a partial dismissal of the charge. Accordingly, we find that, as in Presser, we have jurisdiction to hear the United States's appeal from the district court's pre-trial discovery order, and will now proceed to the merits of its argument.

III.

"It is well established that the scope of discovery is within the sound discretion of the trial court." United States v. One Tract of Real Property, 95 F.3d 422, 427 (6th Cir. 1996) (citations and internal punctuation omitted). We thus review a district court's discovery order in a criminal case for an abuse of discretion. See United States v. Kincaide, 145 F.3d 771, 780 (6th Cir. 1998). Under this standard, "the relevant inquiry is not how the reviewing judges would have ruled if they had been considering the case in the first place, but rather, whether any reasonable person could agree with the district court." Morales v. American Honda Motor Co., Inc., 151 F.3d 500, 511 (6th Cir. 1998).

The United States argues that Bass's evidence in support of his discovery request, including the Department of Justice's Survey and the Department officials' statements, did not constitute sufficient evidence of selective prosecution to warrant discovery. Accordingly, it contends that the district court abused its discretion in ordering the United States to produce the relevant documents. Bass does not dispute that the evidence he presented to the district court was insufficient to constitute a prima facie case of selective prosecution. He does, however, argue that the evidence was sufficient to warrant further investigation through discovery.

To make out a claim of selective prosecution, a defendant must show both a discriminatory effect and a discriminatory purpose or intent. See United States v. Armstrong, 517 U.S. 456, 465, 116 S. Ct. 1480, 134 L.Ed.2d 687 (1996). In Armstrong, the Supreme Court discussed the threshold showing a criminal defendant must make in order to obtain discovery on a selective prosecution claim. See id. at 463, 116 S. Ct. 1480. The Supreme Court noted that "in the absence of clear evidence to the contrary, courts presume that [prosecutors] have properly discharged their official duties." Armstrong, 517 U.S. at 464, 116 S. Ct. 1480 (citations omitted). Accordingly, "the showing necessary to obtain discovery [in a selective prosecution case] should itself be a significant barrier to the litigation of insubstantial claims." Id. Armstrong's plain language requires only that a defendant must present "some evidence tending to show the existence of the discriminatory effect element." Id. at 469, 116 S. Ct. 1480 (citations and internal punctuations omitted). Nonetheless, we have read Armstrong to require some evidence of the discriminatory intent element as well. See United States v. Jones, 159 F.3d 969, 978 (6th Cir. 1998). To establish discriminatory effect, a defendant "must show that similarly situated individuals of a different race were not prosecuted." Armstrong, 517 U.S. at 465, 116 S. Ct. 1480. As an example of "some evidence" showing a "discriminatory effect on blacks as compared to similarly situated whites," Armstrong cited a statistic showing that blacks were "at least 1.7 times as likely as whites" to have a state's disenfranchisement law applied to them. Id. at 467, 116 S. Ct. 1480 (citing Hunter v. Underwood, 471 U.S. 222, 105 S. Ct. 1916, 85 L.Ed.2d 222 (1985)). To establish discriminatory intent, a defendant must show that the prosecutorial policy "was motivated by racial animus." Jones, 159 F.3d at 976-77.

A. Bass's Evidence

Through the Department of Justice's Survey and other statistical evidence, Bass presented the following evidence tending to show that selective prosecution taints the death penalty protocol. First, the Survey showed a significant difference between the percentage of white and black prisoners in the general federal prison population (white: fifty-seven percent; black: thirty-eight percent) and those charged by the United States with death-eligible crimes (white: twenty percent; black: forty-eight percent). Of the seventeen defendants charged with a death-eligible crime in the Eastern District of Michigan, none were white and fourteen were black (the other three were Hispanic).

Second, the Survey showed that the United States entered into a plea bargain with forty-eight percent of the white defendants against whom it sought the death penalty, compared with twenty-five percent of similarly situated black defendants. The United States entered into plea agreements with twenty-eight percent of Hispanics, and twenty-five percent of other non-white defendants.

Third, the Survey showed that two of the three death-eligible offenses charged most frequently against whites and blacks were the same, but that the percentages by race of those charged with each crime were vastly different. Sixteen percent of death-eligible whites were charged with firearms murder, compared with thirty-two percent of death-eligible blacks. Fifteen percent of death-eligible whites were charged with racketeering murder, compared with twenty-two percent of death-eligible blacks. The Survey noted that firearms murder, racketeering murder, and continuing criminal enterprise murder (the three charges brought most frequently against death-eligible blacks) "can be charged in a wide array of circumstances, and [are] therefore more likely to be available as a charging option in a given case than more narrowly defined offenses such as kidnaping-related murder." However, death-eligible whites were most often charged with murder within a federal jurisdiction (twenty-one percent of all death-eligible whites).

Bass also introduced other statistics indicating that blacks are no more likely to commit violent federal offenses than whites. For instance, the United States Sentencing Commission's statistics for 1999 (the most recent statistics currently available) show that twenty-eight percent of people sentenced for federal murder were white, while eighteen percent were black. See 1999 Sourcebook of Federal Sentencing Statistics. In fact, there were only four federal offense categories where whites comprised twenty percent or less of the total defendants sentenced. The Commission's 1999 sentencing statistics reflect three of them: manslaughter (whites: seventeen percent; blacks: eleven percent), sexual abuse (whites: eighteen percent; blacks: seven percent), and immigration (whites: four percent; blacks: four percent). The Survey reflects the fourth: death-eligible defendants (whites: twenty percent; blacks: forty-eight percent). In contrast, the only federal offense reflected in the 1999 sentencing statistics where blacks represented forty-eight percent or more of the total defendants sentenced was robbery (blacks: forty-eight percent; whites: forty-one percent). In the few non-death-eligible offense categories in which blacks actually constituted a higher percentage of total offenders sentenced than whites, none reflected a statistical racial disparity comparable to the disparity reflected by the Survey for death-eligible charges.

In addition to the statistical evidence, Bass introduced public comments made on the Survey's release date by then-Attorney General Reno and then-Deputy Attorney General Holder who expressed concern over the significant racial disparities uncovered by the Survey. For instance, Holder commented:

I can't help but be both personally and profes-sionally disturbed by the numbers that we discuss today. To be sure, many factors have led to the disproportionate representation of racial and ethnic minorities throughout the federal death penalty process. Nevertheless, no one reading this report can help but be disturbed, troubled, by this disparity.

In response to another question, Holder tacitly recognized that the Survey's results implicate the very concerns forming the basis of Bass's selective prosecution claim: "I'm particularly struck by the facts that African-Americans and Hispanics are over-represented in those cases presented for consideration of the death penalty, and those cases where the defendant is actually sentenced to death." (emphasis added). Reno also expressed concern over the Survey's results, even while acknowledging the various non-racial factors that could affect them: "So in some respects I'm not surprised [by the racial disparities], but I continue to be sorely troubled."9 While cautioning that intentional racial bias could not fairly be inferred simply as a result of the numbers, Reno emphatically endorsed future studies to determine whether the disparities were shaped, in part, by racial animus: "More information is needed to better understand the many factors that affect how homicide cases make their way into the federal system and, once in the federal system, why they follow different paths. An even broader analysis must therefore be undertaken to determine if bias does in fact play any role in the federal death penalty system" (emphasis added). Therefore, the top Department of Justice officials have taken the position that, although the Survey's results do not conclusively show intentional racial bias, neither do they conclusively show the lack of bias. Rather, in Reno's and Holder's view, the results demonstrate a clear racial disparity and raise questions warranting further study to determine whether that disparity is caused by intentional racial discrimination.

B. Discriminatory Effect

Bass's evidence shows the same type of statistical disparity the Supreme Court previously approved of in both Hunter and Armstrong as "indisputable evidence" of a law's discriminatory effect. For example, the evidence shows that although whites make up the majority of all federal prisoners, they are only one-fifth of those charged by the United States with death-eligible offenses. The United States charges blacks with a death-eligible offense more than twice as often as it charges whites. Cf. Armstrong, 517 U.S. at 467, 116 S. Ct. 1480 (citing evidence in Hunter as example of type of proof needed to obtain discovery in selective prosecution claim); Hunter, 471 U.S. at 227, 105 S. Ct. 1916 (citing single statistic showing blacks at least 1.7 times as likely as whites to have challenged state law applied to them). In addition, the United States charges blacks with racketeering murder one-and-a-half times as often as it charges whites, and with firearms murder (Bass's charge) more than twice as often as it charges blacks. Among death penalty defendants, the United States enters plea bargains with whites almost twice as often as it does with blacks. Under the "1.7 times" standard approved of in Armstrong, then, the statistics presented by Bass constitute sufficient evidence of a discriminatory effect to warrant further discovery as a matter of law.

The United States concedes that the Survey shows a statistical disparity at the charging stage, but argues that Bass's evidence does not satisfy the "similarly situated" requirement because Bass has failed to identify white defendants who could have been charged with death-eligible crimes but were not. We find, however, that with the plea bargaining statistics, Bass has identified a pool of similarly situated defendants- those whose crimes shared sufficient aggravating factors that the United States chose to pursue the death penalty against each of them. Of those defendants, the United States enters plea bargains with one in two whites; it enters plea bargains with one in four blacks. Therefore, the United States's assertion that Bass has failed to show a discriminatory effect on similarly situated whites and blacks is simply wrong.

Of course non-discriminatory reasons may explain such glaring discrepancies, but Bass need not address any of them at this pre-discovery stage. The current death penalty protocol leaves only three areas where the United States Attorneys can exercise discretion (and, of course, it is the manner in which that discretion is exercised that forms the basis of Bass's claim): bringing federal charges, bringing death-eligible charges, and plea bargaining. In the two areas addressed by the Survey-bringing death-eligible charges and plea bargaining-the racial disparities are clear. Viewing the totality of Bass's evidence, the district court did not abuse its discretion in finding that the statistical disparities are, at the least, some evidence tending to show the death penalty protocol's discriminatory effect warranting discovery.

C. Discriminatory Intent

With regard to the discriminatory intent element, we again find that Bass presented some evidence tending to show that the United States considers the defendant's race when determining whether to charge him or her with a death-eligible offense. The racial disparities identified by Bass in the death penalty charging phase do not occur in any non-death-eligible federal offenses. Therefore, they suggest that a defendant's race does play a role during the death penalty protocol. The Department of Justice's officials' comments bear this out. As Bass states in his brief, "[t]he precise point made by the Attorneys General and the former Deputy Attorney General is that they are deeply troubled because race may be systemically biasing federal capital charging, and that they need more information to know for sure" (emphasis added). If the Department of Justice's official position is that these statistics, standing alone, show sufficient evidence of the possibility of racial animus to warrant further study, we cannot fairly deny Bass the same opportunity to investigate when he has introduced not only the Survey, but several other statistics showing that the grave racial disparities identified by the Survey are unique to the death penalty protocol.

The United States attempts to preclude us from drawing any inference of intentional race discrimination from Bass's statistics by arguing that McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L.Ed.2d 262 (1987), prohibits such inferences. McCleskey held that statistics showing the discriminatory effect of a state's death penalty procedure do not, without more, constitute proof of a discriminatory intent. See id. at 294-95, 107 S. Ct. 1756. In McCleskey, however, the Supreme Court, sitting in federal habeas review, was addressing whether the defendant had carried his burden of proof on the merits of his selective prosecution claim. In contrast, we must determine only whether Bass has shown "some evidence tending to show the existence of . . . discriminatory intent" sufficient to warrant discovery. Jones, 159 F.3d at 978 ("Obviously, a defendant need not prove his case in order to justify discovery on an issue."). McCleskey will certainly preclude Bass's selective prosecution claim if, at the end of discovery, he fails to show any additional evidence that the United States intentionally discriminates against blacks through the death penalty protocol. It does not, however, pose any bar to Bass at this preliminary stage. Here as well, the United States has failed to show that the district court abused its discretion in ordering discovery on the grounds that the stark discriminatory effect of the federal death penalty protocol, coupled with the Department of Justice's official statements recognizing the possibility of intentional discrimination in light of the protocol's discriminatory effect, presents some evidence tending to show that race in fact plays a role in the United States's decision-making process.

IV.

We can dispose of both parties' remaining arguments relatively easily. The United States argues that the district court abused its discretion by citing 18 U.S.C. § 3593(f) as an alternative ground for its discovery order. The United States is correct. That statute, by its plain language, requires only that each jury member swear that he or she voted to impose the death penalty without regard to improper considerations, including the defendant's race. Jury members are simply not responsible for also asserting that the defendant was not prosecuted because of his or her race. Questions regarding the prosecution's motivation are more properly addressed in the type of selective prosecution claim Bass presents. Section 3593(f) does nothing to grant him a right to either obtain discovery or present evidence to a jury regarding alleged discrimination in the prosecution, and the district court abused its discretion in holding otherwise. Nonetheless, because we affirm the district court's discovery order on other grounds, our decision to reverse the district court on this issue does not effect the outcome of this appeal.

Second, the United States argues that the requested items are either not relevant, non-existent, or already in Bass's possession. The district court indicated that it would hear from the United States as to the unavailability or irrelevancy of particular documents, but the United States chose instead to refuse to comply with the entire order. That refusal also prohibited the district court from reviewing the requested documents to determine whether the United States' claimed privileges applied to any of them. Therefore, we find the record insufficiently developed to allow us to assess the merits of the United States's arguments relating to the content of the requested documents. Because of this, and because we think the district court should have the opportunity to review each requested item's relevancy and privileged status in the first instance, we remand to the district court with instructions to allow the United States to produce the documents for an in camera review. If the United States again fails to comply, the district court remains free to impose whatever sanction it deems appropriate under the circumstances.

V.

For the foregoing reasons, we AFFIRM the district court's discovery order, and REMAND for further proceedings consistent with this opinion.

NELSON, Circuit Judge, concurring in part and dissenting in part.

I concur generally in Parts I and II of the court's opinion, as well as in the first paragraph of Part IV, but I would reverse the dismissal of the death penalty notice on the ground that defendant Bass failed to make the threshold showing necessary for issuance of the discovery order he sought.

As Bass acknowledges in his brief, the racial disparities of which he complains "are generated primarily at the early stages of federal capital cases. * * * [T]he major problem seems to occur in the initial selection of cases for federal prosecution on capital-eligible charges." The Department of Justice Statistical Survey on which Bass relies refutes any inference that the Attorney General-who is not required by Department of Justice procedures personally to authorize the bringing of capital-eligible cases-has been guilty of racial discrimination against African Americans. The survey shows that Attorney General Janet Reno personally authorized U.S. Attorneys to file death penalty notices against a higher percentage of white capital-eligible defendants (38 percent) than black capital-eligible defendants (25 percent).

Just as Bass is not challenging the personal bona fides of the Attorney General who authorized the filing of a death penalty notice in his case, as I understand it, he is not alleging that the office of the U.S. Attorney for the district where his case is pending-the Eastern District of Michigan-declined to negotiate a plea bargain with him because of his race. At bottom, rather, his quarrel seems to be with the decision of the U.S. Attorney's Office to bring federal death-eligible charges against him in the first place. And he cannot prevail on this point, ultimately, without demonstrating that the U.S. Attorney's charging policy "had a discriminatory effect and that it was motivated by a discriminatory purpose." United States v. Armstrong, 517 U.S. 456, 465, 116 S. Ct. 1480, 134 L.Ed.2d 687 (1996), quoting Wayte v. United States, 470 U.S. 598, 608, 105 S. Ct. 1524, 84 L.Ed.2d 547 (1985). The standard, as the Armstrong court observed, "is a demanding one." Id. at 463, 116 S. Ct. 1480.

To obtain the discovery he sought here, Bass was required to produce "some evidence" in support of both elements of his selective prosecution defense. See United States v. Jones, 159 F.3d 969, 978 (6th Cir. 1998). This standard is itself a "rigorous" one, see Armstrong, 517 U.S. at 468, 116 S. Ct. 1480, and in my judgment Bass failed to meet it.

Statistically, it is true that most of the capital-eligible prosecutions in the Eastern District of Michigan have been brought against African Americans. It is difficult for me to see how this datum constitutes even "some" evidence of discriminatory effect, however, given what I take to be the complete absence of any evidence that the U.S. Attorney's Office failed to initiate capital-eligible prosecutions against individuals whose situations were similar to that of Mr. Bass but whose race was different. "To establish a discriminatory effect in a race case," Armstrong confirms, "the claimant must show that similarly situated individuals of a different race were not prosecuted." Id. at 465, 116 S. Ct. 1480. And to obtain discovery in this connection, there must be a "credible showing of different treatment of similarly situated persons." Id. at 470, 116 S. Ct. 1480.

Hunter v. Underwood, 471 U.S. 222, 105 S. Ct. 1916, 85 L.Ed.2d 222 (1985), which was distinguished in Armstrong and on which my colleagues on the panel rely heavily here, was a case in which the State of Georgia had adopted a constitutional provision disenfranchising persons convicted of crimes involving moral turpitude. There was direct evidence that the state's purpose had been to deny the vote to blacks. See Hunter, 471 U.S. at 229-31, 105 S. Ct. 1916; Armstrong, 517 U.S. at 467, 116 S. Ct. 1480. The provision had a racially disparate impact in practice, disenfranchising blacks at least 1.7 times as often as whites-and in this context the Hunter court concluded that under the analysis of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S. Ct. 555, 50 L.Ed.2d 450 (1977), and Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S. Ct. 568, 50 L.Ed.2d 471 (1977), there had been a denial of equal protection of the laws. Hunter, 471 U.S. at 233, 105 S. Ct. 1916.

The defendant in Armstrong argued that Hunter "cut against any absolute requirement that there be a showing of failure to prosecute similarly situated individuals." Armstrong, 517 U.S. at 467, 116 S. Ct. 1480. The Armstrong court rejected this argument, noting that the persons adversely affected by Georgia's constitutional provision were all "similarly situated;" the holding in Hunter was thus "consistent with ordinary equal protection principles, including the similarly situated requirement." Id.

The reason that the members of the pool of people disenfranchised by the Georgia constitutional provision were "similarly situated," I take it, was that all of them-black and white-had been convicted of crimes of moral turpitude. In the case before us here, by contrast, there is simply no evidence of any white person being in a situation comparable to Bass' and not being prosecuted.

More importantly, perhaps, there is no evidence here of a racially discriminatory motive corresponding to the improper motives of which there was direct evidence in both Hunter and Jones. The fact that top Justice Department officials have expressed concern over some of the national statistics does not, in my view, constitute "evidence" that capital-eligible charges were brought against Bass because of his race and not simply because there is probable cause to believe that he is responsible for a series of murders committed to protect his drug business.

strict court's decision to grant discovery was unwarranted as a matter of law, and the dismissal of the death penalty notice was thus an abuse of discretion. Insofar as the court holds otherwise, I respectfully dissent.

 

APPENDIX B

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

 

File No. 97-CR-80235

UNITED STATES OF AMERICA, PLAINTIFF

v.

JOHN BASS, DEFENDANT

ORDER GRANTING DISCOVERY
OF INFORMATION PERTAINING TO THE
GOVERNMENT'S CAPITAL CHARGING PRACTICES

[Filed: Oct. 26, 2000]

At a session of said court, held

in the U.S. District Court, Eastern

District of Michigan Southern Division

on_____OCT 26, 2000________

PRESENT: HON._ARTHUR J. TARNOW__

U.S. District Court Judge

Defendant John Bass' request for discovery contained within this Motion to Dismiss the Prosecution's Request for the Death Penalty Because of Racial Discrimination, and for Discovery of Information Pertaining to the Government's Capital Charging Practices is GRANTED.

 

IT IS HEREBY ORDERED that the Government provide Defendant John Bass the following information and documents for inspection and copying to the defense within thirty days:

1. All correspondence from the office of the U.S. Attorney for the Eastern District of Michigan regarding the decision to seek the death penalty against Mr. Bass, including but not limited to:

A. the "Death Penalty Prosecution Memorandum" as described at §73 of the Department of Justice Criminal Resource Manual;

B. the "Death Penalty Evaluation Form for Homicides under titles 8, 18, and 49" and all attached memoranda as described at §74 of the Department of Justice Criminal Resource Manual;

C. the "Non-decisional Case Identifying Information" form identifying the race of defendant and victims as described at §74 of the Department of Justice Criminal Resource Manual;

D. the "Death Penalty Evaluation Form for Killings under Title 21" as described at § 75 of the Department of Justice Criminal Resource Manual; and

E. the "Non-decisional Case Identifying Information" form identifying the race of defendant and victims as described at §75 of the Department of Justice Criminal Resource Manual.

2. Captions and case numbers of all cases submitted to capital case review in the United States between January 1, 1994 and September 1, 2000 with a description of the offense(s) charged and the ultimate disposition of the case.

3. All standards, policies, practices or criteria employed by the Department of Justice to guard against the influence of racial, political, or other arbitrary or invidious factors in the selection of cases and defendants for capital prosecution.

4. For each of the cases identified in item two (2) above, the following information.

A. the "Death Penalty Prosecution Memorandum" as described at §73 of the Department of Justice Criminal Resource Manual:

B. the "Death Penalty Evaluation Form for Homicides under titles 8, 18, and 49" and all attached memoranda as described at §74 of the Department of Justice Criminal Resource Manual;

C. the "Non-decisional Case Identifying Information" form identifying the race of defendant and victims as described at §74 of the Department of Justice Criminal Resource Manual;

D. the "Death Penalty Evaluation Form for Killings under Title 21" as described at §75 of the Department of Justice Criminal Resource Manual; and

E. the "Non-decisional Case Identifying Information" form identifying the race of defendant and victims as described at § 75 of the Department of Justice Criminal Resource Manual.

5. Any correspondence from the Department of Justice to United States Attorneys and their staff between January 1, 1994 and the present regarding federal death penalty policies, procedures, and selection criteria or requesting identification of cases for capital prosecution under federal law.

6. All policies or practice manuals used by the United States Attorney in the Eastern District of Michigan regarding the factors determining whether to charge defendants under Michigan or federal law.

7. A list of all death-eligible indictments originating in the Eastern District of Michigan since January 1, 1994, the race of the defendant, and the ultimate disposition of the cases.

8. A list of any cases known to the Justice Department or to the FBI in which at least one defendant was arrested and charged by state or federal law enforcement authorities, and in which the facts an arrested defendant would have been charged with a capital crime under 18 U.S.C. § 3591, 21 U.S.C. § 848, or 21 U.S.C. § 924(j).

IT IS SO ORDERED this 26 day of October 2000.

___ARTHUR J. TARNOW________

HONORABLE ARTHUR J. TARNOW

U.S. District Court Judge

 

Approved as to Form:

 

/s/ MIKE LEIBSON /s/ WILLIAM B. DANIEL____

MIKE LEIBSON (P24092) WILLIAM B. DANIEL (P12479)

Assistant U.S. Attorney Attorney for Defendant Bass

 

___________________ /s/ ANDREA LYON/wld

KATHRYN MCCARTHY ANDREA LYON (P54085)

(P42003)

Assistant U.S. Attorney Attorney for Defendant Bass

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

No. 97-80235-91

UNITED STATES OF AMERICA, PLAINTIFF

v.

JOHN BASS, DEFENDANT

[Filed: Dec. 20, 2000]

ORDER DENYING GOVERNMENT'S MOTION FOR RECONSIDERATION [769-1]

On November 9, 2000, the Government filed a motion for reconsideration of the Court's order granting discovery of information pertaining to the Government's capital charging practices to which the defendant responded.

The parties have not articulated any new information, or argument. Therefore, the basis for the order stated on the record at the hearing before this Court on October 20, 2000 remains valid.

Based on the October 20, 2000 hearing and the subsequent pleadings to reconsider: IT IS ORDERED that the Government's motion for reconsideration [769-1] is DENIED.

ARTHUR J. TARNOW____

ARTHUR J. TARNOW

United States District Judge

Date: DEC. 20, 2000

 

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

No. 97-80235

UNITED STATES OF AMERICA, PLAINTIFF

v.

JOHN BASS, DEFENDANT

ORDER DISMISSING THE NOTICE OF INTENT TO SEEK THE DEATH PENALTY

On January 9, 2000, the defendant filed a motion to dismiss the capital count against him based on the Government's failure to comply with this Court's order granting discovery. This Court entered an order granting John Bass's Motion for Discovery of Information Pertaining to the Government's Capital Charging Practices on October 12, 2000. The order gave the Government 30 days to comply. The Government filed a motion to reconsider which this Court denied on December 20, 2000.

Based on Government representations that the October discovery order would not be complied with, the elapsing of the compliance time mandated by the October order, and all relevant information:

IT IS ORDERED that the notice to seek the death penalty is DISMISSED.

ARTHUR J. TARNOW____

ARTHUR J. TARNOW

United States District Judge

Date: JAN 10, 2001

APPENDIX C

 

UNITED STATES COURT OF APPEALS
OR THE SIXTH CIRCUIT

No. 01-1213

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT

v.

JOHN BASS, DEFENDANT-APPELLEE

[Filed: Sept. 25, 2001]

On Appeal from the United States District Court for the Eastern District of Michigan at Detroit

JUDGMENT

Before: MARTIN, Chief Judge; NELSON, Circuit Judge; RICE, Chief District Judge.

THIS CAUSE was heard on the record from the district court and was argued by counsel.

IN CONSIDERATION WHEREOF, it is ORDERED that the district court's discovery order is AFFIRMED and the case is REMANDED for further proceedings consistent with the opinion of this court.

ENTERED BY ORDER OF THE COURT

/s/ LEONARD GREEN____________
LEONARD GREEN, Clerk

APPENDIX D

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

No. 01-1213

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT

v.

JOHN BASS, DEFENDANT-APPELLEE

[Filed: Dec. 7, 2001]

ORDER

Before: MARTIN, Chief Judge; NELSON, Circuit Judge; RICE,*o District Judge.

The court having received a petition for rehearing en banc, and the petition having been circulated not only to the original panel members but also to all other active judges of this court, and no judge of this court having requested a vote on the suggestion for rehearing en banc, the petition for rehearing has been referred to the original panel.

The panel has further reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision of the case. Accordingly, the petition is denied.

ENTERED BY ORDER OF THE COURT

/s/ LEONARD GREEN [Illegible]
LEONARD GREEN, Clerk

*o Hon. Walter H. Rice, Chief United States District Judge for the Southern District of Ohio, sitting by designation.