August 12, 2014 4th Circuit published order

United States v Umana

Umana petitioned for review on banc of the split panel decision that upheld the use of hearsay at his death sentencing hearing. The full 4th circuit, 7-5 with one judge recused, denied his petition. Judge Wilkerson, joined by Niemeyer, concurred in denial arguing that the United States Supreme Court has ruled on what evidence may be used at death penalty sentencing, it is the job of intermediate appellate court to follow precedent when on point, the other circuits to consider eh issue agree that the confrontation clause does not apply at sentencing and due process protects Umana’s right not to be sentenced based on unreliable evidence. Judge Gregory, joined by Wynn, dissented from the denial arguing that the Supreme court should review this case as there is tension between the rule applied by the panel majority and the trend in Supreme Court confrontation and death penalty cases which has resulted in a split of authority at the district court level and a split of opinion among circuit judges.

 

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