Federalism by jury in United States v. Fell.

• Author: Lopez, Miguel A.

Sixth Amendment jurisprudence has long sought to give practical form to the constitutional guarantee of a fair jury trial for the criminally accused. (1) Jury selection rules are designed to facilitate the impartial application of relevant law through the fact-finding function of a jury of one's peers. Until recently, courts have not addressed the potential conflict between jury selection rules and the possibility that a jury would be called upon to impose the federal death penalty even in states without the death penalty. Earlier this year, however, the Court of Appeals for the Second Circuit confronted the question of whether there is an insurmountable tension between the Constitution's guarantee of a trial by a jury of one's peers and the oath to uphold federal law over the law of the community from which the jury is drawn. (2) Although the Second Circuit discussed critical aspects of this new battle, it failed to hand down a clear decision on which future cases may dependably rely.

Following the Second Circuit's decision in United States v. Fell, (3) a majority of the Second Circuit denied a petition for an en banc rehearing. (4) The exchange between Judge Raggi's concurrence and Judge Calabresi's dissent, however, heralded not only a new front in the constitutional battle over the federal death penalty, but also a larger debate about the nature of federalism in an age of seemingly unlimited federal power. Judge Raggi accepted the proposition that federal courts sitting in states without the death penalty should have the power to dismiss jurors who categorically oppose the death penalty. (5) Judge Calabresi's dissent, on the other hand, sought to craft a novel judicial rule that would render a state's death penalty laws binding on federal courts sitting within its boundaries. (6) Because both Supreme Court (7) and Second Circuit (8) precedent permit consideration of legal arguments sua sponte when the corresponding issues are properly presented, the court should have ruled on the difficult questions raised by Fell instead of denying the petition for an en banc rehearing and leaving the Sixth Amendment available as a potential vehicle for selective federalism.

On November 26, 2000, Donald Fell and an accomplice brutally murdered Fell's mother and her companion in Rutland, Vermont. (9) After leaving the scene of the murder, the two men visited a local mall, where they kidnapped a fifty-three-year-old store clerk and stole the clerk's car. (10) Fell and the accomplice then drove to New York in the stolen car, stopped in a wooded area, and beat the clerk to death. (11) Because this last murder was part of an interstate kidnapping, the crime constituted a federal offense and became the subject of a federal prosecution. (12) Donald Fell (13) was found guilty by a jury of his peers and sentenced to death in the U.S. District Court for the District of Vermont. (14)

In his appeal, Fell challenged his sentence on a number of grounds, including violation of certain provisions of the Federal Death Penalty Act (15) and errors in juror selection. (16) One of the alleged errors was the removal of Prospective Juror 64, who had expressed opposition to capital punishment. Fell argued that this juror had been excused based on her general opposition to capital punishment, even though she affirmed that she could consider and impose the sentence if called for by law. (17) If Prospective Juror 64 had been willing to consider and impose the death penalty, the juror's dismissal would have violated Supreme Court precedent as set forth in Witherspoon v. Illinois (18) and Wainwright v. Witt, (19) which allow a prospective juror to be seated despite general objections to the death penalty, if he can demonstrate that his personal views will not prevent him from following the law. The Second Circuit, however, has reasoned that voir dire "must [only] be sufficient to permit a trial judge to form 'a definite impression that a prospective juror would be unable to faithfully and impartially apply the law,'" (20) and the panel in Fell maintained that "responses that are ambiguous or reveal considerable confusion may demonstrate substantial impairment." (21) The panel in Fell thus found no violation of the Witherspoon-Witt rule and concluded that the district court had acted within its discretion in dismissing Prospective Juror 64. (22)

In his petition for an en banc hearing of the appeal, Fell continued to assert error in jury selection. (23) The Second Circuit considered the request for a rehearing en banc, but ultimately denied it. (24) Judge Raggi, (25) writing for a majority, concurred in the denial and stated that the dissent's "'federalism' concerns [were] more imaginary than real and [did] not warrant ... en banc consideration." (26) Calling upon federal interest theory, Judge Raggi wrote that "[t]he selection of a federal jury to hear a case arising under federal law involves the exercise of exclusive federal power," and does not "trench on the exercise of any state power." (27) Judge Raggi unequivocally concluded that "it makes no difference that, in this case, the juror's partiality manifested itself in a non-death penalty state such as Vermont rather than a state that authorizes the death penalty." (28)

Judge Calabresi, dissenting from the denial of an en banc rehearing, refused to treat the case as a traditional death penalty appeal. He grounded his theory in the vicinage requirement of the Sixth Amendment (29) and the value of federalism, a value which, he maintained, "entails the right to be tried by a set of people who truly represent the point of view of a state and district." (30) For Judge Calabresi, Fell went to the very heart of how federalism functions: "For a federalism like ours ... to work, perhaps even to survive, it is at least arguable that the values of the citizens of the state in question--not just a minority of them--be reflected in trial juries, even in federal cases." (31) Judge Calabresi suggested that one solution was to remand the petition to "ask the able District Judge whether ... he fully considered the constitutional relevance of the values of Vermonters." (32) If those values had been excluded, Judge Calabresi stated, "the sentence the jury selected must fall." (33)

Judges Pooler and Sack also filed brief dissents, both emphasizing that the issue was one of first impression and deserved a decision of the full court. Judge Sack's opinion primarily focused on the institutional argument for granting a rehearing. (34) Judge Pooler's opinion, like Judge Calabresi's, questioned the application of the "traditional rules" in this case. (35)

The unprecedented course charted by Judge Calabresi's dissent merited a formal en banc response because of the opinion's potential consequences and because this factual context has been largely unaddressed and is certain to be litigated again. (36) Through the lens of juror selection, the Raggi-Calabresi dialogue raises the fundamental issue of when and how courts should announce new constraints on federal power. Judge Calabresi intended to craft a judicial rule that would restrict federal power where that power is...