Appeals court overturns rare Mich. death sentence Rules sentencing phase must be started from scratch

By Ed White

Associated Press

DETROIT (AP) -- A federal appeals court overturned a death sentence Wednesday for a western Michigan man who was convicted of drowning a young woman in a remote lake to prevent her from pursuing a rape case against him.

All three members of the panel upheld Marvin Gabrion's murder conviction. But two, while calling him a "vile" killer, said the sentencing phase of his extraordinary 2002 trial in Grand Rapids federal court must start from scratch.

Gabrion's lawyers should have been allowed to tell jurors that he would not have faced a death sentence if prosecuted in state court because Michigan doesn't allow capital punishment, the appeals court said.

U.S. District Judge Robert Holmes Bell had barred Gabrion's defense team from making that pitch during the sentencing phase. It may not have made a difference in the ultimate result, but the appeals court said it was a legitimate argument for the jury, which unanimously chose the death penalty.

"The case was not brought to serve a special national interest like treason or terrorism different from the normal state interest in punishing murder," said judges Gilbert Merritt and Karen Nelson Moore of the 6th U.S. Circuit Court of Appeals.

"The jury should be given the opportunity to consider whether one or more of them would choose a life sentence rather than the death penalty when the same jury considering the same defendant's proper punishment for the same crime but prosecuted in Michigan state court could not impose the death penalty," the judges said.

In a vigorous dissent, Chief Judge Alice Batchelder said she would have affirmed the murder conviction and sentence.

"The pope condemns the death penalty -- is that a mitigating factor to be argued to the sentencing jury?" she said. "Read generously, this broad view of admissibility entitles a capital defendant's counsel to present evidence or argument no matter how tenuous, tangential, or even speculative. The only limit is counsel's own creativity -- or lack of creativity."

Rachel Timmerman's body, weighed down with chains and cinder blocks, was found in a lake in the Manistee National Forest in Newaygo County in 1997. Local prosecutors had jurisdiction, but the U.S. Attorney's Office did, too, because the victim was found in a portion of the lake that is federal property.

Federal prosecutors and the FBI in Grand Rapids took the case. They had many investigative tools that local authorities lacked, including a grand jury to compel witnesses to give testimony and return an indictment.

"We're reviewing the opinion and considering our options and consulting with U.S. Department of Justice in Washington," U.S. Attorney Don Davis told The Associated Press.

The government could ask the full appeals court to reconsider the decision, a request that is rarely granted. Otherwise, a new jury would be chosen strictly to sentence Gabrion to death or give him a life sentence. Meantime, he will remain in custody.

Messages seeking comment were left with Gabrion's trial attorney, Paul Mitchell, and the attorneys who handled his successful appeal.

During the sentencing phase of the '02 trial, prosecutors blamed Gabrion for the disappearance of four other people, including Timmerman's daughter. The body of one, Wayne Davis, was found floating in another lake a few months after the trial. No charges have been filed.

Gabrion, 57, is on death row at a federal prison in Terre Haute, Ind.

Published: Thu, Aug 4, 2011