Donald Moeller was convicted in 1997 of raping and killing a 9-year-old girl. Moeller was sentenced to death, in South Dakota.

Last year, Moeller filed (yet) another appeal. This time, his reasoning was, "The State's insistent use of the term predator and repeated characterization of the crime as a butchering went far beyond 'the facts surrounding the murder' ... [and its] persistent use of the terms 'predator' and 'butchered' painted a vivid picture of Mr. Moeller as a continuing threat to society and elevated the presentation of evidence beyond mere descriptions of the crime." And the example they used to illustrate the point?

[The word predator] has an interesting and rather contorted history. During the 1980s the word was used in a sexual sense in the literature of serial murder, both crime fiction and true crime, where it appears in book titles alongside phrases implying primitivism, animal savagery, stalking and hunting. Particularly influential in this regard were popular crime writers like Andrew Vacss [sic] who regularly used the word in his novels and newspaper columns, often in the context of revealing pseudo-scientific language. In a typical passage, he argued that:

Chronic sexual predators have crossed an osmotic membrane. They can't step back to the other side-our side. And they don't want to. If we don't kill them or release them, we have but one choice. Call them monsters and isolate them . . . I've spoken to many predators over the years. They always exhibit amazement that we do not hunt them. And that when we capture them, we eventually let them go. Our attitude is a deliberate interference with Darwinism—an endangerment of our species. (Vachss 1993)

Moeller's appeal was denied. And if you want to read the complete filing...

DONALD E. MOELLER, Appellant, v. DOUGLAS WEBER, Warden South Dakota State Penitentiary, Appellee.

On Appeal from the United States District Court for the District of South Dakota, Southern Division.
Honorable Lawrence L. Piersol. United States District Judge.

Reply Brief: Appellant-Petitioner

COUNSEL: [*1] JENNIFFER HORAN, Federal Public Defender, JULIE PITT, AR No: 2008285, DEBORAH ANNE CZUBA, Assistant Federal Public Defenders, Little Rock, Arkansas, For: Donald E. Moeller.

TEXT:

I. MR. MOELLER IS ENTITLED TO RELIEF ON HIS SIMMONS CLAIM.

Mr. Moeller has established all the elements of a Simmons v. South Carolina, 512 U.S. 154 (1994), due process violation and this Court should reverse the district court's denial of relief on this claim. Mr. Moeller has established that he was ineligible for parole if given a life sentence and that the State put his future dangerousness at issue, through evidence and argument, during both phases of his trial. Accordingly, he had a due process right to rebut the issue of future dangerousness by providing the jury with accurate information about his parole ineligibility. The state court unreasonably applied clearly established federal law in denying this claim on direct and collateral review. Therefore, the district court's denial of relief warrants reversal.

A. The State Put Mr. Moeller's Future Dangerousness At Issue.

There are two circumstances necessary to trigger a [*2] defendant's due process right to inform the jury of his parole ineligibility under Simmons. One circumstance is that the State puts the defendant's future dangerousness at issue. Mr. Moeller argues extensively in his principal brief that the State put his future dangerousness at issue in both phases of his trial. The State offers four main arguments regarding this prong of the Simmons claim. First, the State argues that Mr. Moeller cannot benefit from the Supreme Court's decisions in Shafer v. South Carolina, 532 U.S. 36 (2001) and Kelly v. South Carolina, 534 U.S. 246 (2002). Second, the State contends that under Simmons alone the test of when future dangerousness has been raised is narrow. Third, the State argues that descriptions of the crime necessarily cannot constitute argument or evidence regarding the defendant's future dangerousness. Finally, the State attempts to distinguish this case from Kelly on the basis that the prosecution did not engage in name-calling of Mr. Moeller. For the reasons that follow, none of these arguments should convince the Court that Mr. Moeller has not established this element of a Simmons claim. [*3]

(…)
3. Under Simmons, Shafer, and Kelly, the State's Presentation of Evidence and Argument Placed Mr. Moeller's Future Dangerousness At Issue.

The State, through evidence and argument, at both phases of Mr. Moeller's trial, put his future dangerousness at issue. See Appellant Br. at 34-45. The district court agreed that Mr. Moeller's future dangerousness was at issue during the guilt phase. Add. to Appellant Br. at 30. Mr. Moeller argued [*11] in his opening brief that there is no principled basis on which to hold that the defendant's due process right to inform the jury of his parole ineligibility is only triggered when future dangerousness is at issue in the penalty phase when the same jury sits on both phases of the trial. Appellant Br. at 22-33.

The State offers two main arguments to rebut Mr. Moeller's contention that his future dangerousness was put at issue by the State in his trial. First, that descriptions of the crime for which the defendant is on trial necessarily cannot go to future dangerousness. Second, that this case is distinguishable from Kelly because the State did not engage in "name-calling" and "ad hominem attacks" against Mr. Moeller. Neither reason is a correct application of the law or a correct interpretation of the facts here.

First, the State presented evidence of Mr. Moeller's future dangerousness that did not simply relate to the crime for which he was on trial. See Appellant's Br. at 35 (eliciting testimony regarding Mr. Moeller's prior convictions). Second, Kelly provides that "[e]vidence of future dangerousness under Simmons is evidence with a tendency to prove dangerousness [*12] in the future; its relevance to that point does not disappear merely because it might support other inferences or be described in other terms." The evidence of the crime for which Mr. Moeller was on trial certainly supported the inference of future dangerousness. See Appellant Br. at 35-37; 42-45. Third, the Court need not find that the evidence alone put Mr. Moeller's future dangerousness at issue because like in Kelly, "[t]he prosecutor accentuated the clear implication of future dangerousness raised by the evidence and placed the case within the four corners of Simmons" Kelly, 534 U.S. at 255. In the lurid descriptions of the crime the State repeatedly referred to Mr. Moeller as a predator. Appellant Br. at 38. Indeed, in the prosecutor's opening statement during the guilt phase, he used the word "predator" five times. Id. at 38-39. This form of argument "accentuated" the evidence of future dangerousness to move this case within "the four corners of Simmons." Kelly, 534 U.S. at 255. Similarly, as in Kelly, the prosecutor resorted to "[c]haracterizations of butchery" to make the case that Mr. Moeller "would be dangerous [*13] down the road." Id. The State referred to the murder of Becky O'Connell as a butchering at least ten times during the trial. See Appellant's Br. at 40-42 ("butchered body of a little girl;" "her body was butchered;" "their daughter's butchered body was found;" "this butchered body of a nine year old girl;" "this butchered little girl;" "their nine year old girl had been raped and butchered;" "you don't have any opinion on whether or not she was butchered at that particular location"; "you don't have any opinion as to where exactly she was butchered"; "You've just found a body that had been butchered"; "butchered her body.")

The State's insistent use of the term predator and repeated characterization of the crime as a butchering went far beyond "the facts surrounding the murder." Appellee Br. at 57. The State was urging the jury to make assumptions about Mr. Moeller's fundamental nature, a predator, and his predisposition for unspeakable violence, butchery. The State attempts to distinguish what seems to be the clear holding in Kelly that "characterizations of butchery" go to future dangerousness by drawing a distinction based upon word form. The State contends: "One other [*14] element of Kelly that is noticeably absent in the present case is ad hominum attacks on Moeller. The State, in this case, referred to the victim's 'butchered body,' but it did not refer to Moeller as 'a butcher.'" Appellee Br. at 56. First of all, the State's argument tries to extract a rule from the facts of Kelly that contradicts the express language of the opinion. While the opinion recites the prosecutor's use of the term "butcher" it nevertheless finds legal significance in that term as a "characterization[] of butchery." Kelly, 534 U.S. at 256. Second, even if the State is correct in its restrictive reading of Kelly, that the State must engage in "persistent name calling" to trigger Simmons, Appellee Br. at 59, the State did just that by repeatedly calling Mr. Moeller a predator, Appellant's Br. at 38-39. Cf. Kelly, 534 U.S. at 256 ("Thus was Kelly's jury, like its predecessor in Simmons, invited to infer 'that petitioner is a vicious predator who would pose a continuing threat to the community.' Simmons, at 176 (O'Connor, J. concurring in judgment)."). Arguably, the term predator flags future dangerousness for the [*15] jury more so than the term butcher. As one scholar explained:

[The word predator] has an interesting and rather contorted history. During the 1980's the word was used in a sexual sense in the literature of serial murder, both crime fiction and true crime, where it appears in book titles alongside phrases implying primitivism, animal savagery, stalking and hunting. Particularly influential in this regard were popular crime writers like Andrew Vacss [sic] who regularly used the word in his novels and newspaper columns, often in the context of revealing pseudo-scientific language. In a typical passage, he argued that:

Chronic sexual predators have crossed an osmotic membrane. They can't step back to the other side-our side. And they don't want to. If we don't kill them or release them, we have but one choice. Call them monsters and isolate them . . . I've spoken to many predators over the years. They always exhibit amazement that we do not hunt them. And that when we capture them, we eventually let them go. Our attitude is a deliberate interference with Darwinism-an endangerment of our species. (Vachss 1993)

Philip Jenkins, Catch Me Before I Kill More: Seriality as [*16] Modern Monstrosity, 3 Cultural Analysis (2002). See also Amy M. Adler, To Catch a Predator, New York University Law and Legal Theory Working Papers, Paper 229 at 2 (available at: http://lsrnellco.org/nyu_plltwp/229) ("The term 'predator' implied that the offender was relentless and animal-like; thus, it no longer sufficed merely to send him to jail."). The State's persistent use of the terms predator and butchered painted a vivid picture of Mr. Moeller as a continuing threat to society and elevated the presentation of evidence beyond mere descriptions of the crime.

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