Pleau's Lawyers Ask Judge To Amend Indictment To Skirt Death Penalty

Lawyers for accused murderer Jason Pleau are asking US District Court Judge William Smith to dismiss elements of the indictment against him to eliminate the possibility of a death sentence.

Pleau has been the subject of a struggle between federal authorities and Gov. Lincoln Chafee for nearly a year because he could face the death penalty in federal court. He is charged with the murder of David Main during a night deposit robbery at Citizen's Bank in 2010.

In August, Gov. Lincoln Chafee asked the Supreme Court to review the May court decision  ordering the state to turn Pleau over to federal custody. The Providence Journal reports the Supreme Court will decide whether to hear the case on Friday.

The ACLU has filed a brief urging the Supreme court to hear the case, as has the Cato Institute. The US Justice Department has urged the Supreme Court not hear the case. 

On Monday, Pleau's lawyers filed a motion asking the captial elements of the indictment be dismissed because they violate Pleau’s rights under the Fifth and Eighth and Tenth Amendments to the Constitution and the rights guaranteed him by the Federal Death Penalty Act (FDPA):

1. The Federal Death Penalty is so rarely sought and imposed that the statute operates in a fundamentally arbitrary and capricious manner;

2. There is no principled basis for distinguishing between cases in which the federal death penalty is imposed from those in which it is not;

3. The federal death penalty is sought and imposed on the invidious bases of race and race of the victim and the irrational basis of geography;

4. The Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584 (2002), has rendered the federal death penalty unconstitutional

5. The Government has not obtained an indictment consistent with the requirements of the Fifth Amendment because there is no indication that the grand jury knew that it was authorizing a capital prosecution;

6. The FDPA fails to provide a structure which permits jurors to make a reasoned choice between a sentence of life imprisonment without the possibility of release and execution;

7. There is  overwhelming evidence that continued enforcement of the federal death penalty will lead to the execution of innocent people;

8. The people of the State of Rhode Island have rejected the death penalty;

9. The death penalty constitutes cruel and unusual punishment.

According to the Federal Dealth Penalty Act, the US Attorney General makes the decision whether to invoke the death penalty for eligible cases. A full description of the process is avialable at justice.gov.

According to a 2011 report from the Congressional Research Service titlted: Federal Capital Offenses: An Abridged Overview of Substantive and Procedural Law, defendents are death-eligible only if found at a separate sentencing hearing to have acted with life-threatening intent.

"The Federal Death Penalty Act provides several specific aggravating factors, such as murder of a law enforcement officer or multiple murders committed at the same time. It also permits consideration of any relevant “non-statutory aggravating factors.” Impact on the victim’s family and future dangerousness of the defendant are perhaps the most commonly invoked non-statutory aggravating factors. The jury must agree on the existence of at least one of the statutory aggravating factors if the defendant is to be sentenced to death.

The Federal Death Penalty Act permits consideration of any relevant mitigating factor, and identifies a few, such as the absence of prior criminal record or the fact that a co-defendant, equally or more culpable, has escaped with a lesser sentence," according to the report.

Patricia Millett, a partner with the firm of Akin Gump Strauss Hauer & Feld in Washington DC, the head of its Supreme Court litigation group, is handling the state's appeal pro bono, — at no cost to Rhode Island.