United States v. Wilson, No. 07-1320-cr (2d Cir. June 30, 2010) (Jacobs, Miner, Livingston, CJJ)
An Eastern District jury convicted Ronell Wilson of capital crimes for the murder of two NYPD detectives during a botched undercover gun buy; it also unanimously voted to sentence him to death. On appeal, a divided panel vacated the death sentence and remanded the case to the district court for a new penalty phase.
The majority identified two errors that occurred during the penalty phase, both relating to Wilson’s statement of remorse, which he was permitted to read to the jury without being subject to cross-examination.
First, the prosecutor argued that Wilson had not until “last week” accepted responsibility for his offense; while he had “an absolute right to go to trial,” he could not “have it both ways” – go to trial and then “say I’m sorry only after you prove I did it.” The majority held that this comment improperly held out Wilson’s “constitutionally protected decision to go to trial” as a reason to sentence him to death, which “unconstitutionally burdened Wilson’s Sixth Amendment right to trial.”
The majority also identified a Fifth Amendment error. Again discussing on the remorse allocution, the prosecutor commented unfavorably on Wilson’s decision to read a statement rather than take the witness stand, noting that “[t]he path for that witness stand has never been blocked for Mr. Wilson.” The majority held that “an unsworn, uncrossed allocution constitutes a limited Fifth Amendment waiver that allows the prosecution to argue for an adverse inference from a defendant’s failure to testify as to what which he has allocuted.” (emphasis in original). But here, the prosecutor went beyond this waiver by noting that Wilson’s path to the witness stand “has never been blocked.” A juror might have thought that “never” extended “back to the guilt phase of the trial … as well [as] to the full penalty phase rather than just to the reading of the allocution.”
For harmlessness, the majority considered the two errors in combination and concluded that the prosecution could not prove beyond a reasonable doubt that they did not contribute to the verdict. The prosecutor cited two of Wilson’s constitutional elections – to go to trial and not to testify – as reasons to reject two of Wilson’s proffered mitigating factors – acceptance of responsibility and remorse. The government then cited lack of remorse as evidence of future dangerousness. To the majority, the focus on Wilson’s decision to go to trial had an “uncontrollable resonance for the jury” – not one juror found either that Wilson had accepted responsibility or shown remorse, and it unanimously agreed that Wilson presented a risk of future dangerousness. “On these facts, it is hard to see how the government can prove that these errors were harmless.” In addition, the absence of a limiting instruction on the Fifth Amendment issue clearly contributed to the harm.
Judge Livingston dissented. In her view, there was no Sixth Amendment violation at all, and the Fifth Amendment error, if there was one, was so trivial as to be harmless.