marlene wrote:LACurry, all of the jury instructions and transcripts
related to juror activities are indexed
athttp://pwc-sii.com/CourtDocs/TranscriptIndex.htm -- Just go to
J.
Thanks, Marlene, for a great resource, where I got a great overview and all
the material for the penalty phase!
mschulter -- excellent. I was especially taken aback that Scott
being raised by a loving family, being a hard worker, being a contributing
member of society, no previous record of any kind (I'm paraphrasing) was not
in any way a mitigating factor to Delucchi. If ever a person's life
mitigated against the DP, it was Scott's.
True. It's a sign, when mitigation doesn't even get weighed, that a death
sentence may be influenced by what Georgia law has called, if I'm correct,
"passion, prejudice, or any other arbitrary factor."
Did you notice that one of the areas of the brief addresses Geragos
wanting to call an expert witness to explain to the jury some of the other
crimes for which people have gotten DP and LWOP? Delucchi wouldn't allow
it.
Yes! That's the matter of what's often called "proportionality review," or
more precisely "comparative proportionality review," where we see how a
death sentence for a given crime and defendant would compare with other
cases where either death or LWOP has been imposed. While California's
statute doesn't require this to be done by our state Supreme Court, the
Court could do it in all cases, or simply invite capital defendants to raise
the issue on direct appeal in cases where it seems an attractive argument
and have the two sides cite cases they find relevant for comparison.
On appeal, it's good sense, especially in cases where it's clear that lots
of people committing comparably serious crimes, often with worse criminal
records (Scott had none at all!), are getting LWOP, or even less (e.g.
domestic killings charged as simple first-degree murder with a penalty of
25-years-to-life).
The matter of presenting testimony to a _jury_ on other capital cases seems
more questionable to me, although talking about such cases should be
permissible on argument, where various themes of history and human
experience are common.
A decision on this issue might point to earlier California precedents
holding that it's not proper for a penalty trial to become a general debate
or "mini-legislative hearing" on whether capital punishment deters better
than life imprisonment. Similarly, back when capital murder carried a
penalty of either death or life _with_ parole, the Court wanted to
discourage debates about which murderers get paroled after how long, and how
trustworthy the Adult Authority (as it was then called) was in freeing these
killers who just might prey on society again.
For a jury, an approach that avoids these problems is simply to permit
counsel to discuss arguably similar -- or dramatically contrasting -- cases
as a part of argument. It can be a good "reality test" for jurors, who have
a duty to weigh aggravation and mitigation, but can hardly do so in a total
vacuum. The relevant universe isn't the behavior of law-abiding citizens
(like Scott for almost of his life -- or all of it if he's innocent!), but
the behavior of capital murderers who commit first-degree murder with
special circumstances!
There's a fine balance here. The idea of the penalty trial is to focus not
only on the crime for which a defendant like Scott has been convicted, but
what kind of person he or she is and has been through life. Focusing mostly
on the facts of other crimes would be distracting; but having no idea of the
universe of capital crimes that sets a context for the "weighing" of
aggravation and mitigation may actually be worse. Generous room for some
argument along these lines might be a happy medium.
And even extended testimony about other cases might be less distracting and
injurious to justice that the strategy of the prosecution in this case,
raising irrelevant "circumstances of the crime" actually involving events
_after_ the deaths of Laci and Conner, with the obvious intent of inflaming
the passions of jurors and getting them to short-circuit a fair weighing of
aggravation and mitigation. That's not just distracting the jury, but
stampeding it toward an unconstitutional deliberation process and verdict!
Too bad Tom Marino didn't hold out more resolutely.
What I mean very specifically is that "circumstances of the crime" could
include the details of the killings (here unknown!), how much the victims
may have suffered physically or mentally (e.g. prolonged anticipation of
death), and in some cases, also who initiated the use of deadly force. It's
a special circumstances murder whether the defendant killed a police officer
because he was out on an assassination spree; or the police officer quite
lawfully fired the first shot at the defendant who intended to rob, but not
to kill, and reacted in a split second out of "self-preservation," although
absolutely not "self-defense"!!! The special circumstance of killing a
police officer, in itself, could apply to either case, but the second case
seems less aggravated (this example is courtesy of Professor Robert Blecker
of New York Law School, a notable DP supporter who finds the second case
inappropriate for an execution).
And what the "circumstances of the crime" should _not_ include _in a death
penalty context_ are the defendant's alleged tastes or failings, not as a
murderer, but an undertaker; and the family and community tragedy which any
murder causes. I promised a discussion in this post, but since this is long
enough already, I'll save it for the next.
mschulter, do you know, once the State has responded, is Scott now
restricted by only what was included in the original brief? Or can some
other things from the record be added to support, like when re-direct
examination brings up things not covered in direct but which are
permissible?
As far as I know, yes, as far as the claims presented: the opening brief
defines the scope within which the two sides argue the direct appeal from
there on. I do recall some language that reply briefs can develop issues
fairly included within the claims of the opening brief. I'd suspect that
anything relevant in the trial record might be cited in either an opening or
reply brief: it's the claims that would be limited.
But I'm open to correction from any more knowledgeable or experienced
attorney or layperson!