Second Circuit panel reverses federal death sentence based on "prosecutorial error" during sentencing phase
A helpful reader made sure I did not miss this 146-page(!) Second Circuit opinion in US v. Aquart, No. 12‐5086 (2d Cir. Dec. 20, 2018) (available here). Here is an overview from the start of the opinion for the panel:
Aquart here appeals both his conviction and his death sentence. As to conviction, he argues that (1) the trial evidence was insufficient to support guilty verdicts on any of the charged VICAR counts, (2) the prosecution suborned perjury by witnesses John Taylor and Lashika Johnson, and (3) he was prejudiced by prosecutorial misconduct in summation. As to sentence, Aquart’s challenges fall into three categories: (1) prosecutorial misconduct at the penalty phase, (2) insufficiency of the evidence as to certain identified aggravating factors, and (3) unconstitutionality of the death penalty both generally and as applied to his case.
The panel affirms Aquart’s conviction but, based on prosecutorial error, vacates his death sentence and remands the case for a new penalty hearing.
There is too much in the 139-page Aquart opinion for the court for me to summarize it here. But I noticed that a former boss of mine, Judge Calabresi, has this amusing paragraph on an important issue in his short concurrence:
§2.b. Whether Aquart’s Death Sentence is Constitutionally Disproportionate. Because, as the Majority correctly explains, existing Supreme Court Law does not mandate proportionality review, the question of whether, if it did, Aquart would pass that test is entirely hypothetical. (I’m too much an academic to call it academic.) It need not be reached, and I decline to do so
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