9-10.020 Relevant Statutory Provisions

9-10.030 Purposes of the Capital Case Review Process

9-10.040 General Process Leading to the Attorney General's Determination

9-10.050 Preliminary Consideration in the United States Attorney's Office

9-10.060 Special Findings in Indictments

9-10.070 Consultation with the Family of the Victim

9-10.080 Submissions from the United States Attorney

1. Prosecution memorandum. This should be sufficiently detailed to fully inform reviewers of the basis for the United States Attorney's recommendation. The prosecution memorandum should include:

   (1) Unusual circumstances. To ensure that subsequent review is appropriately directed, the first page of the memorandum should note plainly whether the case fits any of the following unusual circumstances:

   1. The case is submitted for "expedited review," as described in § 9-10.100, infra.

   2. The case involves extradition of the defendant from a country where waiver of the authority of the United States to seek the death penalty is necessary for extradition.

   3. The case presents a significant law enforcement reason for not seeking the death penalty (such as the defendant's willingness to cooperate in an important but otherwise difficult prosecution).

   4. The case has been submitted for pre- indictment review as suggested in § 9-10.050, supra.

   (2) Deadlines. Any deadline established by the Court for the filing of a notice of intent to seek the death penalty, trial dates, or other time considerations that could affect the timing of the review process should also be noted on the first page of the memorandum.

   (3) A narrative delineation of the facts and separate delineation of the supporting evidence. Where necessary for accuracy, a chart of the evidence by offense and offender should be appended.

   (4) Discussion of relevant prosecutorial considerations.

   (5) Death penalty analysis. The analysis must identify applicable threshold intent factors under 18 U.S.C. § 3591, applicable statutory aggravating factors under the subsections of 18 U.S.C. §§ 3592(b)-(d), and applicable mitigating factors under 18 U.S.C. § 3592(a). In addition, the United States Attorney should include his or her conclusion on whether all the aggravating factor(s) found to exist sufficiently outweigh all the mitigating factor(s) found to exist to justify a sentence of death, or in the absence of mitigating factors, whether the aggravating factor(s) alone are sufficient to justify a sentence of death.

   (6) Background and criminal record of the capital defendants.

   (7) Background and criminal record of the victim.

   (8) Victim impact. Views of the victim's family on seeking the death penalty and other victim impact evidence should be provided.

   (9) Discussion of the federal interest in prosecuting the case.

   (10) Foreign citizenship. The memorandum should include a discussion on whether the defendant(s) are citizens of foreign countries, and if so, whether the requirements of the Vienna Convention on Consular Relations have been satisfied.

   (11) Recommendation of the United States Attorney on whether the death penalty should be sought.

2. Death-penalty evaluation form. The Department will specify a standardized death-penalty evaluation form, which should be completed by the United States Attorney for each capital-eligible offense charged against each defendant.

3. Non-decisional information form. This form should be submitted in a sealed envelope clearly labeled as containing the non-decisional information.

4. Indictment. Copies of all existing and proposed superseding indictments should be attached. As described in 9-10.060, supra, the indictments should include the special findings necessary for the death penalty to be authorized by statute.

5. Draft notice of intention to seek the death penalty. This document is to be included in the submission only if the United States Attorney recommends seeking the death penalty.

6. Materials provided by defense counsel. Any documents or materials provided by defense counsel to the United States Attorney in the course of the United States Attorney's Office death penalty review process should be provided.

7. Point-of-contact. The name of the assigned attorney in the United States Attorney's Office who is responsible for communicating with the Capital Case Unit about the case should be provided.

8. Relevant court decisions. The first page of the memorandum should highlight court orders and deadlines. The point-of-contact in the United States Attorney's Office is under a continuing obligation to update the Capital Case Unit about developments or changes in court scheduling or any other material aspect of the case.

9-10.090 Substantial Federal Interest

1. The relative strength of the State's interest in prosecution as indicated by the Federal and State characteristics of the criminal conduct. One jurisdiction may have a particularly strong interest because of the nature of the offense, the identity of the offender or victim, the fact that the investigation was conducted primarily by its investigators or through its informants or cooperators, or the possibility that prosecution will lead to disclosure of violations that are peculiarly within the jurisdiction of either Federal or State authorities or will assist an ongoing investigation being conducted by one of them.

2. The extent to which the criminal activity reached beyond the boundaries of a single local prosecutorial jurisdiction. Relevant to this analysis are the nature, extent, and impact of the criminal activity upon the jurisdictions, the number and location of any murders, and the need to procure evidence from other jurisdictions, in particular other States or foreign countries.

3. The relative ability and willingness of the State to prosecute effectively and obtain an appropriate punishment upon conviction. Relevant to this analysis are the ability and willingness of the authorities in each jurisdiction, the prosecutorial and judicial resources necessary to undertake prosecution promptly and effectively, legal or evidentiary problems that might attend prosecution, conditions, attitudes, relationships, and other circumstances that enhance the ability to prosecute effectively or, alternatively, that cast doubt on the likelihood of a thorough and successful prosecution.

9-10.100 Expedited Review Procedures

1. Certain defendants and categories of cases are appropriate for summary disposition on an expedited basis. These include: (1) cases in which the defendant is ineligible for the death penalty because the evidence is insufficient to establish the requisite intent under 18 U.S.C. § 3591 or an applicable statutory aggravating factor under 18 U.S.C. § 3592 (b)-(d); (2) cases that involve the extradition of a defendant or crucial witness from a country that, as precondition to extradition, requires assurances that the death penalty will not be sought for the defendant or the evidence obtained from the witness will not be used to seek the death penalty; (3) cases in which, but for proffer protected evidence, the evidence is insufficient to convict the defendant of the capital offense to which he will plead guilty; (4) cases that involve a potential cooperator whose testimony is necessary to indict the remaining offenders; and (5) cases that have been submitted for pre-indictment review under § 9-10.050, supra.

2. The cover of the submission should indicate in bold lettering that the United States Attorney is seeking expedited review, and it should also indicate the basis on which the case qualifies for expedited review. The accompanying memorandum may be abbreviated, but it should be sufficiently thorough to make clear the basis upon which the case qualifies for expedited review.

3. The Capital Case Unit will screen all cases in which the United States Attorney's Office seeks expedited review to ensure that such review is appropriate. The Unit will then give priority to cases so designated. If the Capital Case Unit finds that the case does not qualify for expedited review, it will be scheduled for review on a non- expedited basis or returned to the United States Attorney's Office for later submission.

9-10.110 Plea Agreements

9-10.120 Department of Justice Review

9-10.130 Standards for Determination

1. Fairness requires all reviewers to evaluate each case on its own merits and on its own terms. As with all other actions taken in the course of Federal prosecutions, bias for or against an individual based upon characteristics such as race or ethnic origin play no role in any recommendation or decision as to whether to seek the death penalty.

2. National consistency requires treating similar cases similarly, when the only material difference is the location of the crime. Reviewers in each district are understandably most familiar with local norms or practice in their district and State, but reviewers must also take care to contextualize a given case within national norms or practice. For this reason, the multi-tier process used to make determinations in this Chapter is carefully designed to provide reviewers with access to the national decision- making context, and thereby, to reduce disparities across districts.

3. In determining whether it is appropriate to seek the death penalty, the United States Attorney, the Capital Review Committee, and the Attorney General will determine whether the applicable statutory aggravating factors and any non-statutory aggravating factors sufficiently outweigh the applicable mitigating factors to justify a sentence of death or, in the absence of any mitigating factors, whether the aggravating factors themselves are sufficient to justify a sentence of death. Reviewers are to resolve ambiguity as to the presence or strength of aggravating or mitigating factors in favor of the defendant. The analysis employed in weighing the aggravating and mitigating factors should be qualitative, not quantitative: a sufficiently strong aggravating factor may outweigh several mitigating factors, and a sufficiently strong mitigating factor may outweigh several aggravating factors. Reviewers may accord weak aggravating or mitigating factors little or no weight. Finally, there must be substantial, admissible, and reliable evidence of the aggravating factors.

4. In deciding whether it is appropriate to seek the death penalty, the United States Attorney, the Capital Review Committee, the Deputy Attorney General, and the Attorney General may consider any legitimate law-enforcement or prosecutorial reason that weighs for or against seeking the death penalty.

9-10.140 Post-Decision Actions

9-10.150 Withdrawal of the Notice of Intention to Seek the Death Penalty

9-10.160 Approval Required For Judicial Sentencing Determination

9-10.170 Reporting Requirements

1. A capital offense is charged or when an indictment is obtained pertaining to conduct that could be, but has not been, charged as a capital offense. The point-of contact should provide the Unit with a copy of the indictment and cause number.

2. A deadline for filing a notice of intent to seek the death penalty or a trial date is established or modified.

3. There are any developments that could affect the ability to file a notice of intent to seek the death penalty sufficiently in advance of trial to allow the defense and prosecution to prepare for a capital punishment hearing.

4. A verdict and sentence are reached in a case in which the Attorney General authorized seeking the death penalty.

5. The Government intends to accept a guilty plea to a capital offense when, but for the defendant's protected proffer, there would be insufficient evidence to charge the offense. The Capital Case Unit may authorize the United States Attorney to proceed with such pleas without submitting the cases to the review process.

9-10.180 Forms and Procedures

9-10.190 Exceptions for the Proper Administration of Justice