by Cynthia Price
Legal News
Everything about the case of Marvin Gabrion, who was convicted of the murder of a 19-year-old woman, has been extraordinary.
The 1997 crime itself, which involved a missing one-year-old baby and several other mysterious disappearances, was high-profile. The victim, Rachel Timmerman, had been thrown into a lake while still alive, chained to concrete blocks with duct tape covering her entire face except the nose so she could fully experience the terror of drowning.
The case took a remarkable turn based on the fact that the lake in question, Oxford Lake, was within the Manistee National Forest. Despite maneuverings claiming that the local government had not followed proper procedures to turn the area over to Federal jurisdiction (later determined to be incorrect), this meant that Marvin Gabrion could be meted out a death sentence in a state which abolished capital punishment in 1846 — the only state in the union which includes such a ban in its constitution.
The defendant himself was extraordinary even as criminals go. In a half-literate way, he came up with numerous theories about who had really killed Rachel Timmerman, some of which can still be found on the Internet. His behavior in court was bizarre, in a manner most believe was a deliberate attempt to have himself declared insane, culminating in him punching one of his attorneys during a court session.
Against many odds, the jury which found Gabrion guilty also handed down a death sentence as his punishment.
And now, two-thirds of the Sixth Circuit Court of Appeals panel reviewing Gabrion’s case have come to a surprising conclusion: they overturned his death sentence, and “remanded [it] for a retrial of the sentencing phase of the case.”
Judge Gilbert Merritt lays out the reasons for that decision in the majority opinion he wrote in United States of America v. Marvin Charles Gabrion II.
The opinion does not dispute his conviction, and even goes so far as to state, “There is no doubt that he murdered her and her infant daughter in June 1997” — despite the fact that Gabrion has never even been charged with the murder of Timmerman’s daughter.
Gabrion’s attorneys came up with a long list of arguments against both the conviction and the sentencing, and the opinion addresses each in detail. However, in laying out the case for a new sentencing trial, Merritt focuses on three main areas.
First was Gabrion’s obvious “mental and emotional disabilities,” which are discussed in the point-by-point analysis at great length. The court felt that some of his acting out, particularly the physical attack on his lawyer, warranted very special consideration. However, after such careful examination, the court concludes “[W]e agree with the District Court that this did not render him incompetent to stand trial. He knew what he was doing throughout.”
The two more weighty issues both had to do with the unusual nature of the possibility of a Michigan jury sentencing Gabrion to death. The opinion first focuses on Judge Robert Holmes Bell’s ruling disallowing Gabrion’s attorneys from arguing in the sentencing phase that if the body had been found just a short distance away, outside the Manistee National Forest, the death penalty would not be an option.
Merritt finds this fact a legitimate “mitigating factor” in the case. His reasoning hinges on the word “any” in the pertinent section of the Federal Death Penalty Act, which states:
“(a) Mitigating factors. — In determining whether a sentence of death is to be imposed on a defendant, the finder of fact shall consider any mitigating factor, including the following:(1) Impaired capacity. . . .(2) Duress. . . .(3) Minor participation. . . .(4) Equally culpable defendants. . . .(5) No prior criminal record. . . .(6) Disturbance. . . .(7) Victim’s consent. . . .(8) Other factors. — Other factors in the defendant's background, record, or character or any other circumstance of the offense that mitigate against imposition of the death sentence.”
Basing the opinion on the terms “any” and “other,” Judges Merritt and Moore found that, first, the jury was obligated to consider mitigating factors; second, “there is no ... limitation other than the factor ‘mitigate’ against a sentence of death;” and third, the presence of a list “including” a category of other factors underscored the word “any.”
Finally, the opinion also finds fault with the District Court’s failure to advise the jury that the aggravating factors — found to be “a likelihood that Gabrion would harm others in the future; the brutal, depraved, and premeditated nature of his crime; the murder of Timmerman’s infant daughter; and obstruction of justice in order to avoid apprehension for rape” — must “outweigh the mitigators beyond a reasonable doubt.” as imposed by the Federal Death Penalty Act.
Chief Judge Alice M. Batchelder wrote an opinion that was in part dissenting and in part concurring. She disagreed with both of the majority opinions that had to do with Federal Death Penalty Act sentencing wording. “I would hold that a reasonable reading of [Sections] 3592(a) and 3593(c) allows a sentencing court to impose some limits on the evidence or argument the defendant may offer in mitigation, and that the district court properly did so in this case. Similarly, I would hold that the Constitution does not dictate the manner in which death-penalty aggravating and mitigating factors are to be weighed, and therefore the district court could not and did not violate the Constitution in the way it instructed the jury.”
Judge Batchelder “would affirm the District Court.”
There were any number of other issues brought up by Gabrion’s current attorneys. They are Margaret O’Donnell, listed as the primary defense attorney, and Kevin McNally, director of the Federal Death Penalty Resource Counsel Project, a project that assists court-appointed attorneys in the defense of capital cases and which operates under the Administrative Office of the United States Courts, Defender Services Division. The opinion notes that McNally is the signatory on the briefs in the appellate case. O’Donnell appears to be McNally’s partner in a Frankfort, Kentucky, law firm called McNally and O’Donnell.
One, for example, concerns whether the jury foreman went into the case with preconceived notions. He was quoted in a March 26, 2002, Grand Rapids Press article, about a week after the jury chose the death penalty, as saying, “‘I read your paper religiously. I knew he was off the wall’ before the trial.” (In that same article the foreman said that “U.S. Chief District Judge Robert Holmes Bell ‘did a great job...’”)
The majority opinion rejected that argument because the juror in question had disclosed the information during voir dire, and told the court that he could set his early impressions aside based on the facts as he heard them.
Other issues raised included the court’s refusal to let Gabrion represent himself (refuted in part by quoting the Supreme Court in Faretta v. California, “[t]he right of self-representation is not a license to abuse the dignity of the courtroom”) and Judge Bell’s removal of a juror who had been caught sleeping ( because “[Bell] alerted the attorneys to what he planned to do if he needed to remove her and he carried out this plan”).
In fact, all of the other issues on appeal were rejected, a few of them solely because they became irrelevant once the panel had decided to overturn the death sentence.
The media widely reported U.S. Attorney Don Davis’s response to the ruling, that the office was considering its options and consulting with the U.S. Department of Justice, and no further clarification was offered.
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