MEDIA

March 8, 2013

‘Future Dangerousness’ Remains a Factor in Death Penalty Case

Published in: New York Law Journal | volume 249

This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York.  Judge Nicholas Garaufis declined to strike evidence of ‘future dangerousness’ in the penalty phase of a capital case.  Judge Denis Hurley dismissed claims by actress Lindsay Lohan for unauthorized use of her name and sanctioned her attorney.  In another case Judge Hurley dismissed plaintiff’s claims that he had been deprived of his right to challenge his classification as a registered sex offender.

‘Future Dangerousness’

In United States v.  Wilson, 04 CR 1016 (EDNY, Feb.  15, 2013), Judge Garaufis denied defendant’s motion to preclude proof of ‘future dangerousness’ as an aggravating factor in the penalty phase of this capital case.  The only alternative to the death penalty was incarceration for life.

Defendant Ronell Wilson, a member of the Bloods gang, was eligible for execution under the Federal Death Penalty Act (FDPA), 15 U.S.C.  §§3591 et seq., for his role in a homicide.  The task for the jury at the penalty phase was a "selection decision" — to determine whether he should receive death or life imprisonment.  That decision is based on a weighing of all aggravating and mitigating factors.  The government must establish any aggravating factor beyond a reasonable doubt.

One of the non-statutory aggravating factors asserted by the government is that Wilson "represents a continuing danger to the life and safety of other persons" and "is likely to commit criminal acts of violence in the future that would constitute a continuing and serious threat to the lives and safety of others." This is the ‘future dangerousness’ factor.

Wilson filed a motion asking the court either to (1) dismiss the ‘future danger’ aggravator pursuant to the Fifth and Eighth amendments and the FDPA, or (2) order an evidentiary hearing on the reliability of predictions of future danger in his case, where he was imprisoned with no possibility of release.

As Garaufis observed, under a line of Supreme Court cases a jury may evaluate future dangerousness, and "if the only alternative to the death penalty is life without parole, the jury must be so informed[.]" Simmons v.  South Carolina, 512 U.S.  154 (1994).

Wilson distinguished his case from Supreme Court cases involving defendants who might be released from prison.  He also cited empirical studies purportedly showing the "stunningly low" rate of violence by capital murderers in federal custody, and the inability of jurors and prosecutors to predict the few who would engage in violence within prison.  In this regard he pointed to his own record—not a single act of violence during his seven years in prison on this case.

But as Garaufis explained, nothing in the relevant Supreme Court decisions suggests an analysis turning on the possibility of a petitioner’s release.  In fact, those decisions have both recognized the difficulty in general of predicting dangerousness, and made clear that this does not constitutionally preclude juries from considering dangerousness as an aggravator.  Jurek v.  Texas, 428 U.S.  262, 275 (1976); Barefoot v.  Estelle, 463 U.S.  880, 898-99 (1983).  Rather, juries should have all relevant information about the defendant.

Despite a defendant’s ineligibility for parole, moreover, the Supreme Court has noted in dicta that he may pose a future danger to other inmates.  Simmons, 512 U.S.  at 165 n.5.

In any event, Wilson’s empirical data are insufficient.  They relate only to an inmate’s potential personally to harm others within the prison.  But a prisoner could also pose a danger if he arranges for others outside the prison to commit acts of violence—a danger present where, as here, defendant holds a high position in a criminal organization.  Even as to an inmate’s ability to cause harm within prison, Wilson’s studies suggest merely the inability, not the impossibility, of predicting future dangerousness.  The Fifth and Eighth amendments thus do not require the court to strike this aggravating factor.  Slip op. 9.

Nor does the FDPA.  Contrary to Wilson’s argument, the probative value of the challenged evidence is not outweighed by the risk of unfair prejudice.  The cited studies do not show that predictions of dangerousness are totally unreliable.  And the FDPA permits balancing of probative value only against "unfair" prejudice.  Slip op. 12.  Wilson will be free to contest the evidence against him, to provide mitigating evidence, and to seek exclusion of specific evidence of future dangerousness that may be unduly prejudicial.  The defense, however, is not entitled to a blanket ruling against evidence of dangerousness.  The court will also ensure that the jury’s consideration of such evidence is limited to the particular context, namely, the impossibility of parole.

Garaufis also rejected the argument that the government could not prove future dangerousness beyond a reasonable doubt, and denied Wilson’s request for an evidentiary hearing on these issues.  Slip op. 14-15.

Celebrity Privacy Claim

In Lohan v.  Perez, 11 CV 5413 (EDNY, Feb.  21, 2013), Judge Hurley dismissed claims by actress Lindsay Lohan under, inter alia, §§50-51 of the New York Civil Rights Law, and sanctioned her counsel for submitting plagiarized papers and making a false statement to the court.

Defendants were the creators, owners, performers or distributors of the song Give Me Everything, which includes the lines: "So, I’m tiptoein’, to keep flowin’/I got it locked up like Lindsay Lohan." Lohan sued defendants for (i) unauthorized use of her name "for the purposes of trade and commercial benefits" in violation of §§50-51 of the New York Civil Rights Law, (ii) unjust enrichment, and (iii) intentional infliction of emotional distress.

The limited remedy of New York Civil Rights Law §§50-51 does not apply to "works of art" and, in any event, the usage complained of was "fleeting" and not "for advertising or purposes of trade." Slip op. 9-12.  The unjust enrichment claim failed because "the only relief for a violation of a right to privacy" under New York law arises under §§50-51 of the New York Civil Rights Law.  The "intentional infliction of emotional distress" claim failed "to meet the threshold for extreme and outrageous conduct." Slip op. 13-14.

While the complaint itself was not sanctionable as frivolous, plaintiff’s counsel was sanctioned for two discrete offenses.  First, plaintiff’s opposition to the motion to dismiss was "taken from other sources without any acknowledgement or identification of those sources." Second, in defending against the charge of plagiarism, plaintiff’s counsel stated, in a letter to the court, that defendants had refused to consent to the filing of amended opposition papers "which would have obviated any alleged plagiarism concerns" when, in fact, the proposed amended papers merely added legal authority, while repeating the plagiarism.  Issues concerning which of plaintiff’s counsel had authored the papers did not preclude sanctions—the same attorney had signed the opposition papers and the letter to the court.  That counsel was sanctioned $750 for each offense.  Slip op. 17-22.

Sex Offender Classification

In Nolan v.  Cuomo, 11 CV 5827 (EDNY, Jan.  16, 2013), Judge Hurley granted the motions of New York State defendants Governor Andrew Cuomo and Sean Byrne, acting commissioner of the New York State Division of Criminal Justice Services (DCJS), and Thomas Spota, Suffolk County District Attorney, to dismiss plaintiff’s lawsuit alleging that he had been improperly denied the opportunity to be "declassified" as a registered sex offender under the New York State Sex Offender Registration Act.

Plaintiff James Nolan was convicted in August 1998 of attempted rape in the third degree.  In May 1999 plaintiff was classified as a Level 2 sex offender and registered as a sex offender under the act.  As amended in January 2006, the statutory scheme requires Level 2 sex offenders to register with the DCJS and provides that a Level 2 sex offender, registered for a period of 30 years, may be relieved of any further duty to register by an order of the sentencing court granting a petition for relief.  Level 1 offenders must register annually for 20 years, but the statutory scheme provides no opportunity to petition for relief from the duty to register.

In December 2008 plaintiff filed a petition in Suffolk County for a hearing on declassification as a Level 2 Sex Offender and for an order relieving him of the obligation of registering and reporting as a sex offender.  Opposing the petition, District Attorney Spota argued that plaintiff had no statutory right to petition the court until he had been registered for a minimum of 30 years and that his request to be declassified and relieved of any duty to register had no support in the act.  County Court Judge Barbara Kahn agreed with Spota but did "find it appropriate to modify plaintiff’s risk level from Level 2 to Level 1." Slip op. 9.

The complaint here asserted that Judge Leonard Wexler’s 2008 decision in Woe v.  Spitzer, 07 CV 1726 (EDNY, Aug.  5, 2008), allowed a registrant to be declassified and that the express language of the act permitted any sex offender (including Level 1) to petition for a modification of the level of notification.  Plaintiff alleged that the District Attorney’s Office, the Commissioner of the DCJS and the County Court of the State of New York had ignored Wexler’s decision and denied plaintiff the opportunity of declassification.

All defendants argued that the claims against them were barred by the 11th Amendment doctrine of sovereign immunity.  Hurley concluded that the 11th Amendment required dismissal because it prohibited federal courts from hearing suits by private parties against the states, and New York State has not waived its sovereign immunity from §1983 claims.  The 11th Amendment also barred plaintiff’s claims for money damages against state officials sued in their official capacities.

Plaintiff sought additionally to enjoin defendants from refusing either to consider the merits of a petition for declassification or to declassify plaintiff or any other registrant.  Under an exception to the 11th Amendment set forth in Ex Parte Young, 209 U.S.  123 (1908), a plaintiff may sue a state official acting in his official capacity for prospective, injunctive relief from violations of federal law.  As Hurley observed, plaintiff had pleaded claims for prospective injunctive relief against Cuomo, Byrne and Spota that fell within the Young exception and were not barred by the 11th Amendment.  The 11th Amendment also does not bar §1983 claims for damages against Cuomo, Byrne and Spota in their individual capacities.

Plaintiff’s claims against Cuomo were based on the provision in the State Constitution requiring the governor to make sure the laws are faithfully executed.  To be a proper party to a suit, however, a state officer must have some connection with the enforcement of the act at issue.  Because Cuomo had no personal involvement in any alleged constitutional violation, he was not a proper party for claims of injunctive relief or damages.  Although the question was closer in regard to Byrne as head of the DCJS, which had some connection to enforcing the act, plaintiff had failed to plead any personal involvement by Byrne in any alleged constitutional deprivation, so claims against him also were dismissed.

Spota, as prosecutor, had absolute immunity in regard to plaintiff’s §1983 damage claims.  He was a proper party for injunctive relief in his official capacity because his office had a connection to the enforcement of the act.  But plaintiff improperly served Spota by delivering the petition to the Suffolk County Attorney, instead of serving him personally or leaving a copy of the summons and complaint at his home.  This service was deficient under both the Federal Rules and New York law.  Hurley thus dismissed all claims against Spota as well.  Slip op. 25.

Harvey M.  Stone and Richard H.  Dolan are partners at Schlam Stone & Dolan.  Bennette D.  Kramer, a partner of the firm, assisted in the preparation of the article.

[This article is reprinted with permission from the March 8, 2013, issue of the New York Law Journal.  Copyright © 2013 ALM Properties, Inc.  All rights reserved.  Further duplication without permission is prohibited.]