Now for the big, big, _no-no_ of Geragos as revealed by those transcripts
Marlene has so helpfully made available.
That no-no is _ever_ taking the stance in a capital case that "the penalty
phase is of no moment"! If you're defending someone on trial for their life,
literally, then you have an absolute duty to be ready for that penalty
phase, however unpleasant or improbable it may seem!
"The fact of the matter is that this case is not about mitigation..." is one
of the rare cases where "never say never" doesn't apply -- a capital defense
attorney must _never_ say or think this! You've got to be ready with
mitigation, and in fact look into the whole life history of your client,
preferably using a mitigation specialist with the social work skills that
attorneys rarely have and don't have time fully to exercise even if they had
them.
In one sense, the penalty phase for Scott could be expected for anyone
familiar with death penalty law to have an issue even more important in a
sense than mitigation: the lack of the kind of aggravation which in this day
and age could reasonably make the case different from many worse crimes
which get LWOP. Trying to present penalty phase testimony on the details of
other cases was going a bit far: the Georgia Supreme Court once pointed out
that comparative review was _their_ responsibility, not that of the jury.
But while the best strategy for giving the jury some perspective within the
bounds of what current law allows is an open question, what you _don't_ do
is make a statement like this:
"This case is very simply about the fact that my client didn't do this, my
client is innocent of these horrible crimes."
"Horrible" in any everyday usage of that word? Sure! But in the context of a
capital penalty trial? Absolutely not! Lack of aggravation could be the most
powerful argument for life, if the attorney is in the right frame of mind to
convey it to the jury. And this is just the opposite.
Some attorneys have been even less subtle: "Whoever did this is an animal --
but it couldn't be my client!" Famous last words, not for the lawyer who
thinks this way or even argues to a guilt phase jury in such words (there
are real cases!), but for clients who can be and have been executed as a
result of such representation. While Geragos didn't say this, his sentiment
seems uncomfortably close to it.
This issue is likely moot because the jury selection errors should
automatically reverse the death sentence anyway, and also because of
possible changes in California law this year that could make the death
penalty a matter of history in our State. Well, I'll give Geragos credit for
speaking up about the jury selection and preserving a sure-fire issue (or as
sure as one can be about these things!).
But "the penalty phase is of no moment" -- that's a capital defense no-no!