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Thursday, March 17, 2005

Language and The Death Penalty -- Part II (Alice in Legal Land)

The guilt phase of any aggravated murder case concerns two things -- did the defendant commit the murder and was the crime so reprehensible that the defendant should be put to death. In order to satisfy the Supreme Court, states have split off the guilt phase of the trial from the penalty phase and have codified the respects in which a murder can be so reprehensible as to raise the question whether the defendant should be put to death. The circumstances that make a murder reprehensible to this degree are known as aggravating or special circumstances and these are always explicitly codified in the law. It is the burden of the prosecutor in the guilt phase to prove beyond a reasonable doubt that the defendant did commit the murder(s) and that the aggravating or special circumstances did obtain. Typical aggravating circumstances are that the victim was one of a set of named government officials or was a police officer performing his duties or (in Ohio) was under the age of thirteen or was someone who might testify against the defendant in a trial. The list is a long one.

Should the jury find beyond a reasonable doubt that the defendant was guilty of murder and that the aggravating or special circumstances surrounding the murder did occur, the trial moves into the penalty phase where the issue is whether or not the prosecutor has proved beyond a reasonable doubt that the aggravating circumstances outweigh any mitigating factors they may wish to consider. Typical mitigating factors are the youth of the defendant, the lack of a prior criminal record, a diminished mental capacity, or whatever else they believe is relevant. Unlike the aggravating circumstances, the mitigating factors the jury may consider are open-ended.

In Ohio, the aggravating circumstances are relatively straight-forward and do not involve any emotionally charged language. This generates a pretense that this weighing process the jury must engage in is somehow objective. The newly revised standard jury instructions for the penalty phase in Ohio specifically instruct the jury not to consider the nature and circumstances surrounding the crime when determining the weight of the aggravating circumstances.
When you consider the nature and circumstances of the offense, you may only consider them if they have any mitigating value [as when the victim somehow induced the attack -- The Language Guy]. You may not considerthe nature and circumstances of the crime as an aggravating circumstance.
Thus, in Ohio, if a defendant tortured his victim before murdering him, the fact that torture occurred cannot be weighed against the mitigating factors. That is, at least, how it is supposed to happen. In sharp contrast, in Connecticut, one of the aggravating circumstances is that the defendant committed the offense in a "heinous, cruel and depraved way." This instruction allows prosecutors to overtly appeal to the emotions of jurors. In Ohio, in contrast, that is specifically disallowed, which isn't to say it doesn't occur.

There is empirical evidence that jurors do not well-comprehend the concepts "aggravation" and "mitigation."Peter Tiersma1argues that jurors cannot be expected to be familiar with the term "mitigation," for it only very rarely occurs in ordinary English2 and notes that the jury's understanding of the term "aggravating circumstance" may be affected by the ordinary meaning of "aggravating," that is, "annoying" or "irritating," an observation he credits to the linguist Robin Lakoff.3 In fact, the use of "aggravating" in the sense that it is used in death penalty law does not occur in ordinary English at all. It harks back to the original Latin meaning of "adding weight" to something. We do not say things like "He gave me an aggravated insult" (by say slapping my face with a hand covered with dog feces) or "He gave me an aggravated punch" (by using brass knuckles. We just don't alk that way.

Therefore, a court that does not sharply distinguish the meaning of "aggravating" when used in the phrase "aggravating circumstances" from the ordinary language senses of this term runs asignificant risk that jurors will utilize the ordinary English meaning in trying to decide what is an aggravating circumstance. Doing so is encouraged by prosecutorial misconduct of a sort described below. Unfortunately, in my experience of reading the transepts of ten or so cases,
judges do not make any special effort to do this. I think this may be because lawyers simply assume that the meanings of legal terms are somehow transparent.

Tiersma also provides a good deal of empirical evidence that jurors do not correctly understand the legal meanings of "mitigating factor" and "aggravating circumstance" based on experiments, interviews with jurors,4 and notes capital jurors have sent to judges.5

Another substantive problem is that prosecutors in Ohio frequently misrepresent these concepts and make appeals to nonstatutory "aggravators". In the case of Allen Holloway, who was arguably severely mentally retarded6 (Case No. C1-94-0229), the prosecutor acted as if Ohio had the Connecticut aggravating circumstance that the defendant committed the offense in a "heinous, cruel and depraved way" when he said:(1566, 1-6)

Basically the aggravating circumstances are the ones we've proven already, the facts and all the facts surrounding the robbery, the infliction of serious physical harm to Clara Wilson, the mitigating factorswe just presented to you.
Here we have an explicit appeal to a nonstatutory aggravator that encouragesjurors to weigh not just the actual statutorily approved aggravating circumstances against the mitigating factors but the emotionally charged fact that the defendant inflicted great harm to the victim before murdering her. He went on to make additional emotional appeals when he referred to the crime as "a two-hour torture killing of a defenseless 84-year-old lady by the name of Clara Wilson, for no apparent reason, other than to steal a $34 radio" and said of the defendant "that he's a killer, a cold-blooded killer." In this trial, the defense attorney and the judge must either have been asleep or didn't know the law because they never once objected to the prosecutor's extralegal actions. It is too bad that such prosecutorial misconduct is not made explicitly illegal and punished by jail time.

Basically the Ohio legal system is kidding itself. As juries in cases I worked on basically confirmed to investigators (when they would talk to them at all) that it was extralegal nonstatutory aggravators such as the fear that the defendant might get out on appeal (now Ohio has a life-with-no-parole option it didn't have then) or that the crime was heinous, and etc. This isn't surprising given the ordinary language meaning of "aggravating" and the fact that one must feel strongly to vote to have someone put to death.

Weighing the statutory aggravating circumstances against whatever mitigators the jury believes exist is rather like comparing apples to catfish -- not an easy thing to do. How does one compare the youth of defendant with no prior criminal record against the killing of a police officer while trying to escape capture after committing a robbery? That should be an easy case. Would it be

1. "Youth" + "No criminal record" divided by "Killing a police officer" = "2" (ergo impose a life sentence)

or would it be

2. "Youth" + "No criminal record" divided by "Killing a police officer" = "1/2" (ergo impose the death sentence)?
Nice neat functions like these simply don't exist and everyone who is not lying to himself or herself knows it. That may be what impels prosecutors to violate the law and appeal to the emotions of the jury. Why didn't the defense attorney object to the prosecutorial misconduct in the Holloway trial? Why didn't the judge step in and stop the prosecutor? The first question is easy to answer -- though defense attorneys in death penalty cases have to be death qualified, they are overworked and seem sometimes not to put much effort into their jobs. Another possibility is that they don't actually know how the laws read. In the case of the prosecutors and judges, I shall go with the least charitable interpretation. These are elected officials, or

in the case of many prosecutors are appointed by an District Attorney who is himself or herself elected and if they live in an area that wants its elected officials to be "tough on crime" then that is the Holloway trial is the kind of death penalty trial one is likely to get with out of control prosecutors and utterly ineffective defense attorneys.



1 Peter Meijes Tiersma, "Dictionaries and Death: Do Capital Jurors Understand Mitigation?," manuscript. Tiersma holds a Ph. D. in linguistics and is currently a Professor of Law at Loyola Marymount University in Los Angeles.

2 Tiersma notes that the American Heritage Word Frequency Book contains a corpus of over five million word tokens and that the word "mitigate" occurs just two times. Normally, the general public tends not to know or fully grasp the meanings of words they rarely encounter. Many will not have encountered it at all before they enter the jury box.

3 This was drawn from a Los Angeles Times article.

4 Half of the ten juries in the Sontag study cited in footnote 5 requested clarification of the terms "aggravating" and "mitigating" from the trial court.

5 Lorelei Sontag, "Deciding Death: A Legal and Empirical Analysis of Penalty Phase Jury Instructions and Capital Decision-making (1990). This doctoral dissertation can be obtained from the University Microfilms, International in Ann Arbor, Michigan.

6 Komp claimed at the web address referred to that he has brain damage and an IQ that has been measured at 55 to 72.

7 In this passage and elsewhere, note that the
prosecutor totally misrepresents the concept of mitigation.





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