15 Steps to Life is our comprehensive strategy guide to defending a capital case. Originally written by VC3 founder Bill Geimer, the Clearinghouse has recently updated the guide and is engaged in a continuous process of tailoring it to Virginia procedures and issues.

ELIMINATING DEATH FROM YOUR CASE: THE BIG PICTURE

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Eliminating Death from Your Case?

Some very important personal and professional matters should be settled at the outset by anyone undertaking responsibility for the life of another. There are many good reasons not to accept a capital case, or to withdraw quickly. They include:

I have not yet tried a criminal case to a jury. My small firm cannot afford the time and expense required to provide competent, aggressive defense. I don't think I can handle the stress. I am too repulsed by what the client did. Neither I nor my firm can risk the public scorn, loss of clients, or loss of favorable working relationships with prosecutors, judges, law enforcement officers and court personnel that might be the result of providing a competent, aggressive defense. My client is indigent and the court will not provide the resources minimally necessary for a competent, aggressive defense. These include time, competent co-counsel, investigatory resources, and fees.

These very personal and practical considerations also implicate Professional Responsibility standards. For example, Virginia Rule of Professional Conduct 1.1 states that, "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."

However, these caveats should not discourage you from taking a capital case. Indeed, in many respects, there is no more rewarding work. Rather, you should consider these matters prior to accepting a case in order to ensure that you are prepared personally and professionally to do what it takes to save your client from a sentence of death.

These considerations regarding resources require some further explanation. Representation of an indigent client in a capital case means that your compensation will be inadequate. You must take this into account, and consider whether you are willing to spend your own funds, if necessary.

There are two resources, however, that you must not elect to do without. The first is time. When you consider the tasks outlined in these materials, we think you will agree that no capital case should proceed to trial within a year of indictment or other charging document. In fact, a year will often be insufficient.

The second is co-counsel. Keep in mind that you will be working to eliminate death from your case as you simultaneously prepare for three trials: (1) the trial to determine the client's eligibility for a sentence of death; (2) the trial to determine the client's sentence; and (3) the case before the appellate courts. Of course, you never want to reach any of these trials, and the materials found at VC3.org will help you to avoid them. But, you must prepare for all three; you can not do it alone. You need as many qualified people as possible on the defense team, but co-counsel is an absolute minimum. (Also, remember that VC3 is available to assist you.)

In fact, in the case of an indigent client charged with a capital offense, the Virginia Code specifically provides for the appointment of co-counsel. Va. Code. Ann. § 19.2-163.7. You should also be aware that, in accordance with Va. Code Ann. § 19.2-163.8(E), the Virginia Public Defender Commission set requirements for lead and co-counsel for indigent clients. For example, lead counsel must be an active member in good standing with the Virginia State Bar, must have at least five years of criminal litigation experience in the preceding seven years, and meet a minimum number of hours of specialized training. You should familiarize yourself with these requirements.

Often, the optimum time to negotiate for these resources and others—including investigators, mitigation specialists, and experts—is when the judge initially seeks to have you appointed to the case. You should remind reluctant judges that you have a constitutional and ethical duty to provide effective assistance of counsel, and that you cannot and will not do so without minimally adequate resources. (This consideration is also important to public defenders, who should also say no when overloaded.)

OK. With eyes wide open, with courage, and with at least some resources, you have accepted a capital case. Let's proceed to make it non-capital.

Some Important Differences Between Capital and Non-Capital Defense

The skills you have developed in non-capital criminal defense will not be wasted, but there are some notably different requirements in capital defense. Unfortunately, what passes for success in the majority of capital cases is winning your client the right to spend the rest of his life in a cage. Better results are sometimes possible, but getting rid of the possibility of a death sentence is the first order of business. The administration of death penalty statutes in all jurisdictions is principally a matter of politics rather than law. Consequently, you will be required to proceed quite differently in several respects than you do in providing good defense in non-capital cases. We will discuss the details of these differences as we proceed through a 15 step process of making your case non-capital. Here is an overview:

YOU ARE NOT PREPARING FOR A CAPITAL TRIAL, YOU ARE PREPARING NOT TO HAVE A CAPITAL TRIAL.

There, of course, may be a capital trial— it may be unavoidable— and you must be prepared for that trial. But it is crucial not to view this outcome as inevitable, or even likely. Our experience has been that far too many defense attorneys, judges, and prosecutors get locked into the implicit assumption that a capital trial will happen. It just seems to be a given. Your assumption, however, should be that there will be no capital trial because either (1) the client will plead guilty to a non-capital offense, or (2) a death sentence will no longer be an option when the case goes to trial. You may be surprised to see how often this "not a death case" mind-set can be communicated to prosecutors and judges.

THE TRIAL IS NOT EVERYTHING: PROTECTING THE RECORD.

For many able criminal defense lawyers, a conviction is appealed, if at all, no further than a state appellate court. That is, after all, where the constitutional right to counsel ends. In particular, thought is rarely given to the federal courts. Good appellate practice in these cases also means winnowing out weaker claims and concentrating on stronger ones. Capital defense is a different world.

A conviction and death sentence should and almost always will proceed through the entire state and federal system. This means certiorari to the U.S. Supreme Court, state collateral proceedings, and federal habeas. There is a small, but obviously important chance that a death sentence may be reversed during these proceedings, but only if you have proceeded at trial in a way that keeps that chance alive.

A complete guide to preserving the record is beyond the scope of these materials. It is important to keep in mind, however, that whether an appellate court, particularly a federal court, will even consider granting relief for the most egregious violations of constitutional rights depends almost entirely on what you have done or failed to do at the trial level. Here are some general pointers:

Learn Virginia's trial and appellate rules.

Virginia trial and appellate procedures are governed by the Rules of the Supreme Court of Virginia, Part 3:A Criminal Practice and Procedure.  Specifically, Rule 3A:9 governs pleadings and motions for trial, including defenses and objections, and Rule 3A:15 governs motions to strike or to set aside the verdict, judgment of acquittal, or new trial.  

Procedural default rules, which bar a capital defendant's appellate and habeas corpus relief and can mean the difference between life and death, are defined by Rule 5:25 and common law.  If an appellate court deems an issue procedurally defaulted, clients may lose their opportunity to attack the sentence with valid appellate and habeas claims.  For an understanding of Virginia's contemporaneous objection rule, appropriately noting an objection in the record, and correctly preserving errors for appellate review and habeas corpus proceedings, see Matthew K. Mahoney, "Bridging the Procedural Default Chasm," 12 Cap. Def. J. 305 (Spring 2000).

Everything is Federal.

In addition to applicable state law grounds for every motion, objection, submission, these issues must be raised on federal grounds also. For example, if the court is going to deny you the time you need to prepare a complete defense, you do not simply move for a continuance. In virtually all jurisdictions, the grant or denial of continuances is purely a matter of state law, left to the sound discretion of the trial judge and reviewed on an abuse of discretion standard. Your motion must claim in addition that if you are denied time to prepare, the client will be denied the right to effective assistance of counsel guaranteed by the Sixth Amendment of the U.S. Constitution, any death sentence that results will violate the Eighth Amendment, and the entire proceeding will be fundamentally unfair, in violation of the Fourteenth Amendment. If you put your mind to it, you will soon see that virtually every unfair action or ruling can be seen as a violation of the Sixth, Eighth and Fourteenth Amendments!

To preserve an issue for appellate review, counsel should always cite the United States Constitution, as interpreted by the decisions of the United States Supreme Court and other lower courts, the Virginia constitution, state law (statutes, rules or case law), and "any other applicable law," as bases for granting relief in any motion, objection, request for jury instruction or other application to the court. Moreover, since citation to one constitutional provision does not preserve the issue if counsel tries to later present the same issue under a different constitutional ground, it is important to cite to all possible applicable clauses of the state and U.S. Constitutions.

More particularly, defense counsel also should take at least the following steps to adequately preserve an issue for appellate review: (1) counsel must raise every possible issue; (2) counsel must "federalize" all motions, pleadings and objections by citing to federal court decisions; (3) counsel must establish a factual basis for relief both in broader and more specific terms; (4) counsel must ensure that the substance of all meetings and discussions appear on the record; and (5) counsel must make sure that all grounds for objections be fully developed on the record, even if it means filing a handwritten memo with the clerk.

Because defense counsel are charged with anticipating developments in the law, the lawyer representing a person facing the death penalty must be on the cutting edge of the law. Every possible issue must be preserved at each step of the process. Counsel should contact lawyers and organizations specializing in capital representation to find out what issues are being raised in other cases, what issues are pending at the United States Supreme Court and the state supreme courts, and what new decisions have come down. Counsel should preserve anything that appears unfair or unjust even if it involves challenging accepted practices. That is the way the law changes and improves.

It is important for counsel to assert all grounds of relief, not just what seems to be the best ground. It is better to be over-inclusive than under-inclusive. Counsel should not leave out an issue simply because it has been rejected or is without precedent. Counsel must keep in mind that what is a losing issue today may be a winning issue tomorrow. Thus, counsel must assert positions that have not yet won acceptance. When precedent is lacking, counsel should make assertions based upon broad application of constitutional principles such as fundamental fairness guaranteed by the due process clause of the Fourteenth Amendment or the Eighth Amendment's requirement of heightened reliability in a capital case. Because it is impossible to anticipate new decisions years in advance, counsel must be creative in framing issues and asserting every reasonable constitutional ground in support of them.

Therefore, in stating the legal grounds, counsel should mention any applicable Amendments to the U.S. Constitution, any sections of the state constitution or law and "any other applicable law." For example, an objection to hearsay testimony should be based not only upon the state evidentiary rule against hearsay, but also upon the right to confrontation in the state constitution and in the Sixth Amendment to the United States Constitution, the Eighth Amendment requirement of heightened reliability in a capital case, and the cruel and unusual punishment clause of the state constitution. Similarly, if the judge limits what counsel can ask on voir dire, it may violate the client's rights to an impartial jury guaranteed by the Sixth Amendment and to a fair trial guaranteed by the Fourteenth. It may also violate the similar provisions contained in the state constitution, and state statutes, rules, or caselaw.

Whenever possible, in addition to state supreme court cases, counsel should cite to federal cases - United States Supreme Court, the United States Courts of Appeals, and federal district courts. (By citing a case, counsel invokes all of the principles discussed in that case.)

It is essential that counsel be familiar with capital decisions from the United States Supreme Court and the federal circuit courts of appeals and argue those cases. Cases decided by the United States Supreme Court are particularly important. Some of these cases, such as Gardner v. Florida , 430 U.S. 349 (1977), set out constitutional principles that may be used by counsel to construct arguments regarding a number of issues.

For example, anything involving the fairness of the trial raises an issue under the reliability requirement of the cruel and unusual punishment clause of the Eighth Amendment and the due process clause of the Fourteenth Amendment. Thus, counsel in a case might file a motion in limine to exclude prejudicial evidence such as other crimes or photographs based upon the Eighth and Fourteenth Amendments. At trial, counsel would assert these Amendments in an objection to any prejudicial evidence or in opposition to any objection made by the prosecution.

This is not to minimize the importance of raising all state law grounds. Indeed, it is crucial to also cite the relevant provision of the state constitution, statute or rule because the state supreme court may find a violation of the state law or constitution, even though the Supreme Court of the United States would not interpret the federal constitution in the same manner. This phenomenon has happened repeatedly.

Of course, on many occasions the federal courts have held the protections of the United States Constitution to be greater than the state protections. There is no way to know whether the state or federal grounds will save a client's life until the decision is rendered. So, counsel must assert both state and federal grounds at each stage to each court.

THE TRIAL IS EVERYTHING

How small is the chance for appellate relief described above? Very small. Recent statutory and case law developments have all but eliminated federal habeas relief. Some state courts afford meaningful appellate review, most do not. The current state of things means that you must proceed on the assumption that if the client is sentenced to death, he will eventually be executed. And, in case you need a little more motivation (or pressure) most capital trials result in death sentences. That is why the focus of these materials is: do not have a capital trial.

THE BIGGEST DIFFERENCE: MITIGATION

The greatest departure from non-capital defense involves finding and using whatever it is about the client, his life, or the circumstances of the charge that will avoid a death sentence. This is a massive task. It must be undertaken as early as possible. It usually takes priority over preparation related to guilt or innocence, though both tasks must be conducted simultaneously. (See absolute requirement of co-counsel.) Finally, the case in mitigation is likely to be less effective if it must be presented at trial. That is in part because your effort to tell a powerful human story will have to be crammed into the stilted legal devices of direct and cross examination, exhibits, arguments, etc. That is why we focus on the formation and use of mitigation evidence before trial.

MORE CREATIVITY AND A THICKER SKIN

These attributes are certainly useful in non-capital defense. They are vastly more important to capital defense. Capital cases are driven by political considerations. Once the train gets moving, creative efforts to slow or derail it may not be well received. Good relationships formed over time in the court system with decent people may be jeopardized.

A good example of creative capital defense that can provoke strong negative response even as it is vital to the client is motions practice. The most valuable part of your state's criminal procedure system may very well be the rule or statute providing that anything except the ultimate question of guilt or innocence can be the subject of a pretrial motion. We will provide some guidance for creative motions practice. (See Step 8) You must open your mind to be even more creative. You must also be prepared to take the heat for slowing down the train. Civility is a legitimate and valuable aspect of trial practice so long as it is in the interest of the client. In a capital case, however, it is important to be on guard against being co-opted by the system. Keep always in mind that the state is trying to kill your client. On the subject of creativity in any event, "my judge won't let me do that" is not an acceptable excuse.

These are only some of the differences between good non-capital practice and effective capital defense. You may not encounter the obstacles or hostility suggested by these highlights. If you do not, count yourself fortunate. In any event, do not "go along" with anything at the client's expense.

Now let's move on to the 15 step program to get death out of the case.

Step 1: The Criminal Demurrer

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You should start by comparing the very best case the Commonwealth can make with the death-eligibility and death-sentencing requirements of the capital statute and with the constitution. It may surprise some that prosecutors, particularly those steeped more in politics than law, are not all legal geniuses.  Just because they initiate a capital case doesn't mean they have one.

The "Criminal Demurrer" is just what its name suggests.  It is the procedural device for determining whether the state's evidence, in its most favorable light, giving it the benefit of every reasonable inference, will still fail to permit a death sentence.  We give the generic name Criminal Demurrer.  Whatever its name in a particular system, it is typically that part of the procedural rules that abolishes the old writs and motions and provides for raising by pretrial motion anything that does not require trial of the "general issue."  Insufficiency as a matter of law does not require trial of the general issue.

We have been surprised at the number of cases that have proceeded well down the road toward trial, and were even tried, when everything the Commonwealth had or could come up with fell short of authorizing a death sentence.  If that is the situation, your Criminal Demurrer can make the case non-capital at an early stage.  If it does, you will have saved the court and the taxpayers valuable resources.  You should (but probably won't) get an official commendation.

The beauty of the Criminal Demurrer, however, is that it can have great value even when it is denied.  For example, it may be that the judge properly rules "that is a question for the jury," or "this is premature."  Yet your well presented motion may have put the judge on notice that there are some potential problems with the Commonwealth's case for death.  There is no more valuable ally in your ongoing effort to negotiate a non-capital outcome (See Step 7) than the trial judge.  This assistance is even more valuable when the judge is one willing to have a word of prayer with the prosecutor about the need to get the case resolved.

Another positive aspect of Criminal Demurrers is that the process of getting death out early can often be done in a way that saves face for everyone by leaving a non-capital trial to go forward.  Especially in states where capital murder requires an offense or circumstance in addition to traditional murder, striking the capital predicate may leave a non-capital lesser included offense.  In such cases, the judge can feel better about granting only partial relief of the motion.  Given that penalties for non-capital offenses have become so severe in recent years, the prosecutor may even be satisfied to quit at this point.  Your general relief will also be enhanced if you happen to have a client who was reluctant to plead guilty to anything.  You will be even more relieved if the there is actually a defense to the charge that you should be able to submit to a jury without risking the client's life to do so.

In fact, the alternative of a non-capital trial, with conviction resulting in severe punishment short of death, is very often the most just resolution of a case.  For that reason, it should also be a major part of the negotiation process discussed in Step 7. Given its obvious advantages for all sides, it is an alternative that should be given more serious consideration and effort than is currently the case in capital defense.

Let's illustrate the Criminal Demurrer:

Grounds: The Client's Conduct Does Not Meet Statutory Requirements for Death Penalty

Example -- Virginia

Deputy Sheriff, in full uniform and driving patrol car on his way to work, stops at Dunkin Donuts as usual.  Client, incensed because he believes the Deputy is having an affair with his wife, lies in wait in the doughnut shop and fatally stabs him.

Va. Code Ann. 18.2-31(6) provides that the premeditated murder of a law enforcement officer for the purpose of interfering with his official duties is capital murder.  So the client is not guilty of capital murder in the example and the Criminal Demurrer should be granted.  The client's action did in fact interfere with the performance of official duty, but that was not its purpose.

Further, though not raised by this example, the statute's requirement that the prosecutor prove beyond a reasonable doubt that the client knew the victim was a peace officer will sometimes be problematic.

The point of these examples is simply to remember to do what every good criminal lawyer does in any case.  No matter how many times you have read the statute under which the client is charged, read it again.  This exercise can be even more valuable in capital defense because of the frequency of predicate circumstance or offense requirements in death penalty statutes.

Even when there is no predicate offense or circumstance requirement for death eligibility, the Criminal Demurrer can be useful.  In Florida and North Carolina, for example, capital murder is traditional "first degree" murder, requiring "premeditation and deliberation."  Circumstances like "in the commission of robbery" or "in the commission of...rape," elements of the offense of capital murder in Texas and Virginia, are aggravating factors, relevant only when death eligibility has been achieved.  (More about aggravating factors soon.)

What about filing a Criminal Demurrer on the grounds that, as a matter of law, the killing was not premeditated?  A ticket to jail for contempt?  A waste of your time and the court's?  If you have ever tried a first degree murder case, you know that premeditation/deliberation is the element separating first degree murder from second degree murder -- capital from non-capital.  But you also know that the distinction is meaningless.  Any requirement to prove that the slaying was planned, or that the choice to kill or not was "revolved over" in the mind is long gone.  The common sense meaning of the terms has been construed away by the courts so that intentional killings are premeditated.  Besides, it is always a question for the jury.  Isn't it?

BUT

Courts dealing with these terms often have not bothered to formally overrule their earlier opinions describing premeditation/deliberation as a mental process rather than a mental state.

SO

In a given case, a Criminal Demurrer on the ground that the killing was not premeditated can pass the straight face test.  And sometimes it can be a good idea to litigate this one even though you will lose,

BECAUSE

It can provide an opportunity to educate the judge early (and maybe even the prosecutor) about mental mitigation.  A number of mental impairments common to capital defendants are logically related in some degree to the presence or absence of premeditation.  True, the question is almost always one for the jury and in truth these conditions may not be legally sufficient to negate premeditation/deliberation as currently construed.  But this can be another opportunity to let the court know early that getting a death sentence may not be the walk in the park the prosecutor has probably painted it to be.

Regardless of whether a mental impairment negates premeditation/deliberation, or makes out insanity, or diminished capacity so as to defeat death eligibility, it will in any event be admissible at the penalty trial.  (See Steps 2, 3, 14).  If the judge is alerted early to any reasonable possibility that the client may not be sentenced to death at the end of a long and expensive process, you are again on the way to getting the case settled.

We acknowledge here that this, and other strategies we will suggest, may require disclosing information to the prosecutor that is not required to be disclosed at the time.  You have to decide whether in your case that is a risk worth taking.  The case for life -- the theory and evidence showing that a death sentence is not appropriate -- may be far more persuasive and useful before a penalty trial is reached.  If that is true, at least parts of it must often be disclosed earlier, with the risk of providing the prosecutor with opportunity to prepare rebuttal if things don't work out.

Grounds: Client is Not a Member of a Class Subject to the Death Penalty

The Criminal Demurrer can also be a vehicle for getting death out of a case because state or federal law does not permit the client's execution, even if the Commonwealth can prove all the elements of capital murder and whatever aggravating factors the statutory scheme may require.

Example: Age

In spite of the current "get tough on juveniles" climate, your client is constitutionally not subject to execution if he was less than 18 years of age at the time of the offense. Roper v. Simmons, 125 S. Ct. 1183 (2005). In fact, we initially developed the Criminal Demurrer because every year, like clockwork, a couple of Virginia prosecutors try to kill 15 year olds.

It is also a capital crime for a person twenty-one or older to kill a person under the age of fourteen.  Va. Code Ann. §18.2-31(12).  So, if your client is under twenty-one and the victim is fourteen or older, your client is not eligible for the death penalty.  If that is the only capital crime that your client is charged with, you can easily take death off the table.

Example: Role in the Killing

Here is another way the U.S. Constitution can remove a client from the class of death-eligible.  Although the general law of accomplice liability provides that "the hand of one is the hand of all," in capital cases there are limitations.  In Enmund v. Florida, 458 U.S. 782 (1982), the client was a getaway driver. The Court held that accomplice/felony murder law could make him guilty of the capital offense, but execution is a disproportionate punishment for one who did not kill, attempt to kill, or intend that deadly force be used.  Without overruling Enmund, the Court later backed off considerably in Tison v. Arizona, 481 U.S. 137 (1987), holding that it is permissible to execute an accomplice who was a "major participant" in the felony and who acted with "reckless disregard for human life."

Again, within these constitutional constraints, state law may provide further protection and should be consulted.  Virginia law provides, for example, that except in murder for hire cases, or cases where the defendants acted jointly to cause death, only the actual slayer can be convicted of capital murder, much less be executed. Frye v. Commonwealth, 345 S.E. 2d 267 (Va. 1986).

Example: Mental Impairment

No state law subjects one who was insane at the time of the offense to execution.  The real battleground involves the very different condition of mental retardation.  As of 2002, in Atkins v. Virginia, 536 U.S. 304 (2002), the U.S. Supreme Court has finally held that the mentally retarded are per se protected from execution, overruling Penry v. Lynaugh, 492 U.S. 302 (1989).  The Court, however,left it to each individual state to fashion statutes setting out definitions of mental retardation and procedures for determining whether an individual defendant is indeed retarded.  Some states, of course, already had such structures in place before Atkins, but many still do not. While there are similarities among the statutes and procedures and while it will be important to argue that Atkins requires certain things, counsel must become familiar with the particular rules and statutes of the individual state where counsel's case is being prosecuted.

Also, quite apart from the question of filing a Criminal Demurrer, make a note here that it is essential to learn what mental retardation is, how to recognize it, and how it differs from mental illness.  (See Steps 2, 3, 11).

In Virginia, the fact-finder determines whether the defendant is mentally retarded.  Va. Code Ann. § 19.2-264.3:1.1(C).  Therefore, if the case is tried before a jury, the jury will make the determination, but if the case is tried before the judge, the judge will.

Example: The Crime

This example is included in honor of our friends in Louisiana. The largest class of those protected from execution encompasses non-murderers.  The narrowest holding of Coker v. Georgia, 433 U.S. 584 (1977) is that the death penalty for rape of an adult woman is unconstitutional.  But the facts of Coker were so aggravated, and the language of the Court so forceful that the case has always been seen as forbidding the death penalty in the absence of a homicide.

Louisiana recently made an abortive attempt to re-capitalize rape.  A 1994 federal statute purports to make some attempted murders capital.  (If you have a federal case, contact David Bruck right away).  It is unlikely that your case will not involve a homicide.  If it does not, the Criminal Demurrer will be granted and it is almost your civic duty to file it and save the court's time!

Grounds: No Aggravating Factor

The constitution forbids a mandatory death penalty, no matter how the state defines the capital offense.  Consequently, capital schemes provide for two proceedings.  The first is to determine whether the accused has committed an offense for which death is a permissible penalty.  The second is to determine whether that penalty will actually be imposed.  At this stage, the statutory schemes require proof of something beyond the elements of the capital crime to support a death sentence.  These are commonly called aggravating factors, or aggravators.

In some states, as mentioned, a death sentence can be supported by one or more fairly definite, determinable aggravators.  Examples would be a concomitant robbery, rape, or special status of the victim.  Depending on the evidence, Criminal Demurrers to the aggravators are much less useful in these states.  But the major death penalty states also have incredibly vague aggravators.  All the advantages of Criminal Demurrers outlined here can apply to challenging these factors early.

Virginia has two aggravating factors, the defendant must either be a “continuing serious threat to society,” or the defendant’s crime must have been “outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim.”  Va. Code Ann. § 19.2-264.2.  These are commonly referred to as “future dangerousness” and “vileness.”

Example: Client is not a Future Danger

This aggravator is the "fear" part of the team of "fear and loathing" that has put many a person on death row.  That is, it is a general appeal to the sentencer to fear the client and kill him so he can't harm anyone else.  In order to cloak the fear factor in formal legality, however, the statutory language typically requires proof of some very real and specific danger.  Such language can make the Criminal Demurrer appropriate.  In Texas and Virginia, for example, a death-eligible defendant may nevertheless not be sentenced to death unless the Commonwealth proves beyond a reasonable doubt that there is a probability (Get your mind around that!) that the defendant will commit criminal acts of violence that would constitute a continuing and serious threat to society.  Non-violent crimes, or violent crimes that are isolated, or pose only a minor threat apparently don't count.  And given the statutory alternative to a death sentence, society means the prison society, not the street.

Now the restrictions in that statutory language won't mean a thing to a jury if you get to a penalty trial.  But they can certainly invite motions to get rid of the factor on behalf of clients with modest criminal records, or even very lengthy non-violent criminal histories.  If, as in Texas, this is the only factor that can support a death sentence, a successful Criminal Demurrer gets death out of the case.

Example: Not Vile or Heinous

This is the "loathing" part of the scheme. There are two versions of an unfocused appeal to the sentencer to be sufficiently revolted by the autopsy and crime scene pictures to impose a death sentence. The versions are equally meaningless.  The short version of the factor is that the murder was "particularly heinous, atrocious, or cruel."  The long version is that the defendant's conduct was "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or aggravated assault."

Here again, the bald appeal to loathing is cloaked in legality. So, there is a long line of cases prescribing limitations in an effort to make sense of this nonsense.  It's too much to go into here, but when you review the law start with Godfrey v. Georgia, 446 U.S. 420 (1980); Maynard v. Cartwright, 486 U.S. 356 (1988); and Bell v. Cone, 543 U.S. 447 (2005).  The idea again is that the law does not permit all murderers to be sentenced to death. If you have any experience trying homicide cases, you understand a concept that is difficult to explain to the public.  You sense when you are dealing with a "garden variety murder."  Judges have the same understanding.  It may be a sad commentary on our violent society, but those in the system know that there are murders and there are murders.  The law says the death penalty is supposed to be reserved for the "worst" murders.  If your client shot the convenience store clerk once through the head and didn't do any raping, stabbing, or mutilating, you may be able to get rid of this factor.  Like future dangerousness, if it is the only factor supporting death, you win.  Even if it is not, and other aggravators remain, it is more than worthwhile to preclude formal consideration of one of these dangerous "gut feeling" factors by the sentencer.

Conclusion

Many of the tactical threads we have identified in Step 1 are important to the remaining steps and will be discussed further.  In more cases than you might expect, the Criminal Demurrer can get death out of the case early.  Failing that, it can lay an important foundation for getting death out a little later.  Either way, it is a step that should not be overlooked.  We close this step with a couple of sample motions designed to test the state's case for death at the outset.

Caveat: Sample motions are just that. Your motions must be carefully individualized for your case.

MOTION TO DISMISS CAPITAL INDICTMENT

Now comes Mr. Client, by counsel, pursuant to the 6th, 8th, and 14th Amendments of the Constitution of the United States, Section ## of the (State) Constitution, and (State) Rule of Procedure ##, and moves the Court for an order dismissing the capital indictment on which Client stands accused in the this action.

In support of this motion, Mr. Client alleges that the evidence which is and will be available to (State), taken in the light most favorable to (State), and giving (State) the benefit of every reasonable inference therefrom, is insufficient as a matter of law to establish the elements of the offense of capital murder with which Client stands accused, in that there is insufficient evidence to establish [that the homicide was committed in the perpetration of robbery, rape, etc.; that Client knew the victim was a peace officer; that the homicide was for hire; Client was 15 years old at the time of the homicide: etc.]

WHEREFORE, in the interest of justice and economy, Client prays that the capital indictment be dismissed and this cause be permitted to proceed on such lesser included offenses as the evidence may tend to show.

MOTION TO PROHIBIT IMPOSITION OF DEATH PENALTY ON GROUNDS THAT NO AGGRAVATING FACTOR EXISTS

Comes now Mr. Client, by counsel, pursuant to [same as Motion to Dismiss Capital Indictment] and moves this court to prohibit imposition of the death penalty against him on the grounds that no reasonable juror could find that [any] [the] aggravating factor of [vileness; future danger; etc.] exists, as required by [State statute].  These grounds are further explained in the attached Memorandum of Law.

In support of this motion, Client alleges that, the relevant evidence which is and will be available to (State), taken in the light most favorable to (State), and giving (State) the benefit of every reasonable inference therefrom, is insufficient as a matter of law to establish [any aggravating factor; the named factors you choose to attack.]

WHEREFORE, in the interest of justice and economy, Client prays that an order issue prohibiting imposition of the death penalty in this cause.

BEGINNING THE ATTACK ON THE STATE'S CASE FOR DEATH IS AS SIMPLE AND INEXPENSIVE AS THIS. THE NEXT TWO STEPS ARE NEITHER SIMPLE NOR INEXPENSIVE.

Step 2: Investigate the Client's Life

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This step must be undertaken immediately.  It is ongoing even as you are examining the possibilities of the Criminal Demurrer.

The obvious purpose of this step is to develop evidence in support of a case that the client should not be killed even if he committed a capital crime.  Development of a theory and its relation to the investigation is dealt with at length in Step 3.  Before settling on a theory of the case for life, we think it is important simply to learn as much about the client as possible.  Deciding too early on a theory may cause the best case to be overlooked.

Finding that case for the client who bludgeoned the elderly woman to death and robbed her, or worse, may require a great deal of hard work.  Be assured, however, that the case for life for this hypothetical client, and for every real client, is out there.

Conducting the massive investigation that may be needed may also require overcoming a psychological hurdle.  Let's face it, what self-respecting trial attorney wants to start work on a case by operating on the assumption that the client will be found guilty as charged?  That is not what we are about.  There is also a practical hurdle: client relations.  You will need his confidence and cooperation, and he may think that starting with matters related to his sentence is a little Alice in Wonderlandish. But it must be done.  Your time and resources are likely to be so limited, and the real case for life so complex and hidden, that you cannot afford not to start the investigation immediately.  Besides, as we have said and will say again, the case for life is most effective before trial.  You never want to have to present it to a jury.

On the Paper Trail!

Sometimes the sheer magnitude of a task, especially an unfamiliar one, can almost immobilize us.  Finding the case for life can be such a task.  It may lie anywhere in the client's history from pre-birth to the present.  To get a handle on it, we recommend you start by collecting paper.  Every piece of paper that has ever had the client's name on it, as well as many documents bearing the names of family members, will be required. Here is a partial list of those pieces of paper:

How Do I Get This Stuff?

Here are a few ways to shorten the ride on the paper trail:

Whatever means are used, assembling the documents will also require releases from the client and family members.  Here is a sample release:

AUTHORIZATION FOR RELEASE OF RECORDS

I, ______, [DOB], [SSN], do hereby release for inspection and photocopying any and all records, including those normally considered privileged and confidential, including but not limited to medical records, psychiatric or psychological evaluations and records, social service agency records, school records, juvenile court records or any records incidental thereto, military records, prison records (including pre-sentencing reports, any testing reports or medical evaluations and reports), and any records whatsoever to the following persons or their designated agent.

[Insert names of all attorneys, paralegals, investigators, and other defense team members.]

[Signature]

[Notary Affirmation and Seal]

Following the federal Health Insurance Portability and Accountability Act [HIPAA] of 1996, it will be necessary to get separate releases for medical records which satisfy the specific requirements of that act.  Samples of such releases can be obtained from any hospital or medical provider's office. 

It is practically impossible to conduct a mitigation investigation without the assistance of a mitigation specialist, a social worker, or another qualified investigator.  One of the first things counsel assigned to a capital case should do is ascertain how to obtain such assistance to prepare for the penalty phase.  The investigation of the client's life is completed by carefully reviewing the collected documents, interviewing significant individuals identified there, and others you learned of independently.

Interviewing Witnesses

Often finding witnesses is difficult, whether they are family members or associates of the client.  Given the length of time between an incident and the trial and the need to look into the entire life history of the client, useful witnesses may be difficult to track down. Counsel and investigators should be prepared to use a wide variety of records and databases. Counsel should consider looking in local court records if phonebooks do not prove to be a useful start. The Internet and computer databases have greatly enhanced data collection.  Additionally, "Peoplefinder" on Lexis, the computer program Autotrack, and consumer credit databases such as TRW and Equifax are useful in finding persons who may have moved. These sources are available for a small fee.  Above all, counsel and investigators should be creative in looking for persons, and try every available option.

In interviews, counsel will be in the position of asking family members and others to divulge secrets about themselves and their families and communities.  Rarely will secrets be divulged in an office in a twenty minute appointment slot.  Counsel, an investigator, or a social worker should visit family members in their homes and will definitely have to visit them more than once.  It is often important to interview people alone, outside the presence of other family members, if they are to confide in the interviewer.  It may be better to start out with general questions and gradually build up to more sensitive topics.

The interviewer should also be sensitive to language and cultural barriers, especially when discussing topics such as sexual abuse.  Difficulty communicating with your clients or his family may be strong grounds for obtaining a mitigation specialist or investigator to assist you.

Thoughtful examination of these documents and the results of the interviews will help you with Step 3.  In turn, your completion of Step 3 will measurably assist in the determination of whom to interview, when, and what to look for.

Step 3: Develop a Theory of Mitigation

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Simply put, you must be able to articulate, first to yourself and then to others, the answer to this question: "If my client is convicted of doing everything the state alleges that he did, why should the jury not give him death?"

Our experience and that of others, confirmed and strengthened by research, has identified several workable approaches to answering this vital question.  They are outlined below, along with references to parts of your investigation to which you might look for evidentiary support.

The Nature of the Enterprise

Trying to find and tell a life-saving story within a legal/procedural framework adds several considerations with no absolute counterpart in non-capital defense. These considerations remain in force to a greater or lesser degree, whether the case for life is being presented to the prosecutor (See Step 7), to the judge (See Steps 1, 8), the victim's family (See Step 6), or to the jury after conviction. (See Steps 14, 15). They are most significant if the case has to get to a jury.

No Excuses!

You are not looking for an excuse for what the client did.  There is no excuse for what the client did.  Rather, you are looking for an explanation that is causally linked to the crime, sufficient to permit the jurors to answer the "why" question; to permit them to understand enough not to kill the client.

Reverse Burden of Proof

The jury will have these two questions:  Why did he do it?  Why shouldn't we vote to kill him?  Regardless of the wording of state procedures, and the accompanying legalese, it will be your job to provide persuasive answers to the questions.

The Presumption of Death

On a related note, if the client is convicted you will face a presumption that death is the appropriate punishment.  Again, this is true no matter what the law formally provides.  In Virginia, a convicted capital murderer is not even eligible for a death sentence unless the state bears the burden of proving beyond a reasonable doubt one of two aggravating factors.  That's the law. The reality will be that, having seen the gory autopsy and crime scene photos, and having already decided that it was indeed your client who shot the store clerks as they begged for their lives, the jurors will vote to kill him unless you overcome the presumption and persuade them otherwise. The presumption of death is yet another reason for early preparation of the case in mitigation, and for not saving it until the penalty trial.  Prosecutors and judges may have other reasons for leaning towards death, but at least they are not looking at crime scene photos for first time.

The Good News: Anything Goes

What is relevant to the question of whether the client should be sentenced to death?  The good news is, almost anything you can boldly assert and plausibly maintain.  This is one area where the law has been relatively consistent.  Any aspect of the client's character, history, or circumstances of the offense that you proffer as a basis for a sentence less than death is relevant and must be considered.  A few disturbing clouds have arisen on the legal horizon, suggesting that consideration of mitigation can be "shaped" even if it can't be restricted.  But even these nuances are not likely to have filtered to trial courts.  Regardless of whether he or she is absolutely correct, your judge is probably going to concede that anything you chose is OK to make the case for life, and restricting you in that area is the surest path to reversal.  You may want to look over the breadth of the base cases, Lockett v. Ohio, 438 U.S. 586 (1978); Eddings v. Oklahoma, 455 U.S. 104 (1982); Skipper v. South Carolina, 476 U.S. 1 (1986).  Keep in mind also that, in addition to the breadth of evidence permissible as part of your case for life, other evidence favorable to you must be permitted in furtherance of your right to rebut the state's case for death.  See, e.g., Simmons v. South Carolina, 512 U.S. 154 (1994).

Themes of Mitigation: Where Does My Guy Fit?

cartoon: 'I wasn't abused, but I cut off my father's head anyway.'

The results of your investigation may provide an opportunity to focus on one or more of the mitigation themes discussed here.  To some extent, of course, you will have to play the cards that investigation deals you.  Do not overlook, however, the power to honestly shape the "facts" to a degree and to emphasize the significance of some over others.  All of the following themes are legitimate, but we think some are more persuasive than others.  An effort should be made to find and present matters that fit the better themes.  For example, we have found least persuasive those factors that are not related to the crime.  (See "Good Guy" and "Positive Prisoner" themes below.) The mitigation theme does not have to be temporally confined to the crime, but it must address the "why" question.

Good Guy

Employers, co-workers, family members, friends, preachers, his former commanding officer, all attest to what an honest, dependable, hardworking, upstanding citizen the client is. This evidence can always have value as a complement to a more persuasive theme.  It should not be overlooked.  And there may be the rare capital murderer whose positive characteristics are so exemplary that they make the case for mercy on their own.  But this is usually not the theme around which to build the case for life.  It is sometimes tempting to do so because this evidence is much easier to come by than evidence that supports more persuasive themes. As noted, however, it does not say much about why the client killed in the way he did.  Further, in the case of jurors, unless very careful voir dire has been conducted (See Step 12), there are likely to be jurors who care little or nothing about matters unrelated to the day of the crime.

Aberration

Exactly "why" may never be known, but this killing was completely out of character for this otherwise outstanding individual -- and we need not worry that it will ever happen again.

We have seen this work sometimes, and frankly are not sure why.  It is something of a species of Good Guy evidence, but perhaps with an important extra layer. In addition to the witnesses who establish what a fine citizen the client was, this theme often encompasses evidence of stressors with which jurors may be able to identify somewhat. The addition of financial, personal, domestic pressures can suggest the crime-related half of the aberration theme.  Good Guy evidence is the other half.  All the better if the conduct of those involved in imposing the stress can be justly condemned. There is a fine line to be walked here.  Remember you are not suggesting an excuse for the crime. The stress suggested as part of the aberration theme does not have to be the type that would convince jurors that they would have reacted the same way, but it does have to be something they can understand and relate to.

Positive Prisoner

The clear evidence is that the client will pose no threat to anyone if he is sentenced to life in prison rather than death.  Not only that, he has demonstrated that he can construct for himself a life behind the walls that is valuable and useful to himself, his family, the prison administration and others.

This evidence does not address the question of why the client committed the crime, but it does confront a major factor in death sentences: fear. Regardless of whether fear of the client is officially present in a statutory "future dangerousness" aggravator, it will be a part of every capital sentencing decision. The theme also provides an opportunity to present some mainstream witnesses.  Prison and jail officials are often quite fair-minded folks.  In addition to speaking well about the client, they are almost certain to be proud of their security procedures.  That alone helps to reduce fear.

A word of caution and encouragement.  Do not be discouraged from pursuing this theme by what looks like a much less than perfect jail or prison record.  Many entries in the record may sound bad, but in fact be relatively minor.  The confinement personnel may give you a more positive picture.  Sometimes they will describe conduct not in the record that made their life a little easier.  Full development and presentation of such anecdotes can be more persuasive than a dry list of noted infractions.

Lingering Doubt

Even though the client has been convicted, some doubt remains of his guilt.  There is a possibility that he is not guilty at all, or a possibility that he is only guilty of a lesser offense.  There are sufficient questions, not answered by the prosecution, and this justifies not imposing death.

Regardless of what the law provides, jurors have sometimes bargained over the sentence at the time they were supposed to determining guilt or innocence.  And, after finding a defendant guilty of capital murder beyond a reasonable doubt, some have held out for a life sentence because of lingering doubt.  Preliminary research indicated that lingering doubt is a significant sentencing consideration.  Later and more extensive research found it to be less important.  Nevertheless, especially if the case must go to trial, any evidence or lack of evidence suggesting innocence that was a part of the guilt/innocence trial should not be abandoned at the penalty trial simply because a guilty verdict was returned.  You do not have the right to have the jury instructed on this factor, but so long as you do not insult jurors by directly challenging their verdict, it may a good idea to remind them.

Co-Defendant Culpability/Influence

The client's conduct in the crime was not as bad as that of others, who will not suffer death or whose fate is not yet determined; influence, pressure, persuasion, or coercion by co-defendant(s) substantially influenced client's conduct.

Again remembering not to couch this evidence as excuse, it can be very effective.  It is a theme that will probably be even more successful when presented to prosecutors and judges early in the case, rather than to jurors. You are already familiar with this dynamic from your non-capital defense work.  Here is an example of how it can be even more significant in a capital case.  Several years ago in Florida, a black man named Elwood Barclay and his friends attempted to provoke a race war.  They randomly selected a white hitchhiker and murdered him.  Then they sent tapes to local radio stations containing their comments on how much they enjoyed the killing.  The majority of a mostly white jury in Jacksonville recommended life instead of death for Barclay.  They did so because they were convinced that a co-defendant was more culpable and that Barclay was influenced by him.

A final word of caution about this important theme in mitigation. Christopher Burger, from Georgia, should also be alive today.  He was much less culpable than his co-defendant and was also influenced by him. But not only did Burger's lawyer present no evidence at two penalty trials, his firm represented the co-defendant.  Under some very limited circumstances, representation of co-defendant does not violate law or rules of professional responsibility.  But this is NOT true in capital cases. Relative culpability will almost always be important and you cannot know enough about it at the outset.  Accept only one capital client.

No-Fault Impairment Linked to the Crime

At some point in the life of the client, an impairing event or series of events happened over which he had no control and for which he cannot justly be held responsible, and, there is an unbroken causal link between the impairment and his conduct in committing the crime.

This is the theme that is most likely to require investigation and presentation in the greatest number of capital cases.  It can be strengthened by evidence that the client at some time demonstrated worthwhile characteristics, particularly by struggling, albeit without success, against the impairment.

Both elements of the theme are vitally important.  The impairment must not have been the fault of the client.  But it may have occurred at any time during the life of the client, or even before birth.  This means that the focus can properly be shifted away from the day the client did the worst thing he has ever done, and fall on an earlier time.  This is also why the thorough investigation in Step 2 is so essential.  You need to find that no-fault impairment.  It can take many forms and several examples are discussed below.

Second, it is essential that you be able to relate the impairment to the crime.  "Impairment" means something that is not only not his fault, but which helps to explain why he didn't act the way we would at the crucial time.  Something bad that happened to the client, even if it wasn't his fault, simply won't work if presented in the abstract.  We now have enough experience with the modern death penalty to know that the client's life is not likely to be spared simply because he experienced a horrible and abusive childhood.  Death rows are full of such individuals.  If that childhood experience has some clearly understandable connection to why he did what he did on the night in question, however, the result may be different.

IMPAIRMENTS AND LINKS: EXAMPLES

A link to the crime common to many of the impairments described here is the devastating effect they have on the ability to recognize options and make rational judgments at moments of great stress.  Many of the conditions also render their victims more susceptible to the influence of others.

Organic Impairments

Overlooked in the current focus on DNA exonerations is the rapid advance of scientific inquiry into the effect of certain physiological impairments on later conduct.  Organic brain damage and Fetal Alcohol Syndrome are but two examples of conditions that are certainly not the fault of the client and may very well have influenced his criminal conduct.  You may be able to identify signs of organic impairment from the paper trail you have collected.  Birth and medical records as well as incidents of head trauma from family history may give some indication.  You may very well also need one or more specialized experts. The fight to obtain resources to develop this evidence should probably be waged one step at a time. For example, you or an expert might file an affidavit to the effect that the documents suggest the likelihood of a condition, but the particular expert should confirm or refute this.  That expert might see the need for another, and so on.  (Incidentally, don't forget the 6th, 8th, and 14th Amendments whenever the judge turns you down.)

Abuse

Many capital defendants have absolutely horrific experiences of physical and sexual abuse.  No one will have any difficulty accepting that this was not their fault.  As mentioned, however, there does not appear to be enough pure sympathy available to save many of them from death sentences on that basis alone. There is an additional problem.  This impairment will often be very difficult to uncover.  Rarely will the client volunteer information about it. The same is true of the abusers, and of other victims in the family. Interviews with aunts and uncles can sometimes reveal family secrets, as can a second look at the documents you have collected, especially school records, medical records, and social service agency records.  From these agencies, and probation and prison records, you may also have family histories.  Such documents are a good source of preliminary impression and leads, but little if any weight should be attached to their conclusions. They were not prepared for the purpose you seek, and the quality of the preparers varies considerably.

When you find that the client has suffered abuse, there are several possible links to the crime.  A history of physical abuse can lead back to organic impairment.  A history of sexual abuse can at least begin to explain the sexual aspects of some homicides.  Another common sense link is simply the development of attitudes about violence that can develop in victims of violence, as well as attitudes of indifference toward violence that outstrip even those of society at large.  A delicate consideration in making the link between the impact of abuse and the crime, is taking care to deal with the fear factor.  We don't want to convince people that, unfortunate as it is, the abuse has created a monster that we now need to kill for our own protection.

Drugs and Alcohol

Client was placed by others in a relationship with drugs and the drug culture at a time when he had no real choice about that.

You are undoubtedly aware that if the client's ability to make rational choices and act reasonably under stress was impaired by alcohol or drugs at the time of the killing, that is an aggravating factor, not something that will save his life. Voluntary intoxication and voluntary coke snorting do not produce no-fault impairments!  But if the client who killed the elderly couple who discovered him breaking into their home for drug money was started on crack at age ten, by his parents who also started him as a courier about that time, the picture is at least a little more understandable.  Many like this hypothetical client will also have been abused, helping to explain why violence seemed to him to be the only option when he was discovered.

Mental Retardation and Mental Illness

The United States Supreme Court recently held that mental retardation is a per se bar to execution, Atkins v. Virginia, 536 U.S. 304 (2002).  In this case, the Court basically left it to the states to formulate their own definitions of mental retardation and establish their own procedures for enforcing the constitutional ban.  Many states already had statutes and procedures in places prior to Atkins, but some still have not enacted measures to comply with it.  You must, of course, familiarize yourself with Virginia's procedures and law. See e.g. Va. Code Ann. §19.2-264.2 -- §19.2-264.4; §19.2-264.3:1.1; §19.2-264.3:1.2; §19.2-264.4.

Thus, while it is extremely important in any capital case to identify mental retardation if it is present, because it may, after Atkins, actually constitutionally bar imposition of the death penalty, any mental impairment can be an important mitigating factor which you must explore, identify and demonstrate to the jury. 

It is important to understand that there is a difference between mental illness and mental retardation.  Mental retardation is a condition suffered by many capital defendants.  (MR, by definition, means that significantly sub-average intellectual functioning must manifest itself before age eighteen.)  For an example of the role of mental retardation as mitigation, the devastating effect of a seven year old's mind in an adult body having to deal with sexual attraction, and the risk of retardation as evidence of future danger, see Penry v. Lynaugh, 492 U.S. 302 (1989).

The value of the no-fault impairment of retardation is not limited to explaining the violent choices made at the time of the crime. The mentally retarded are also susceptible the influence of others, including co-defendants and police interrogators. They do what others want them to do, and they confess to things they did not do.

Once you identify the possibility that the client is mentally retarded, you will need particularized expert help to develop this theme.  A quick way to get a lay understanding in order to assist your investigation and presentation would be to read James Ellis and Ruth Luckasson, "Mentally Retarded Criminal Defendants", 53 Geo. Wash. L. Rev. 414 (1985).

You will learn why this impairment is overlooked and underutilized.  One reason is that retarded clients actively seek to hide the disability.  Another is that the degree of the impairment is not appreciated. Terms like "borderline" or "mildly" make us think that the client may be "a little slow," but that is all. In fact, a client with an IQ of 70 may be a superstar in the mentally retarded community, but he is severely impaired in life functioning.

We strongly urge you to read up on MR, look for the indicators, and get expert assistance if you discover them.

Mental illness is, of course, another no-fault impairment common to capital defendants.  And major mental illnesses like schizophrenia and bi-polar disorder (formerly manic depression) can be linked in an explanatory way to crime, just as is the case with mental retardation.  Unfortunately, many types can be faked and that is likely to be the first assumption of prosecutors and jurors.  Insanity defenses, for example, don't have a 99% failure rate because people don't care if the client was insane.  The problem is, they don't believe the client was insane.

Nevertheless, mental illness, mental impairment or brain injury - all of which are strikingly common among clients charged with capital crimes -- can be powerful mitigating factors if presented convincingly to the jury.  This is not to say that doing so is easy. 1) You must be prepared to learn to fully understand your client's situation and impairment, whether it is mental illness, mental impairment or brain injury, and it will undoubtedly require intense study on your part and intense collaboration with relevant experts and other mental health professionals as well as family members and friends of your client.  2) You have to figure out the most convincing way to convey to the jury the realities of your client's impairment and how it, in combination with whatever other stressors -- such as alcohol or drug impairment, lack of sleep, codefendants, childhood experiences, etc. -- may have influenced him at the time of the crime, and how the confluence of all these factors may have contributed to causing the crime.  3) You and your team may have to reassure and convince the jury that the factors which came together and ended with the crime in the present case can be ameliorated by medication and the structures of a prison setting and that a life sentence will sufficiently protect society from your client in spite of his mental illness.  4) You have to understand that mitigation is not an excuse or a justification for the crime or even an explanation for your client's behavior at the time of the crime but yet learn to be able to convince a jury that your client's mental illness, mental impairment or brain injury is one of the frailties of humankind which so critically compromised your client's judgment and impaired his ability to fully appreciate the full context of the circumstances.

SUMMARY

The above by no means constitutes the entire list of matters that may save a life in a particular case.  Your thoroughness, tenacity, and creativity will determine the theme or the blend of themes that will avoid a death sentence.  Here a few final thoughts about Step 3:

The next milestone in getting death out of your case is Step 7, Negotiating a Non-Capital Disposition.  There are three interim steps that can aid that process.

Step 4: Identify Potential Weaknesses in Commonwealth's Guilt Case or Case for Death

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For many prosecutors and defense attorneys alike, the principal purpose and focus of plea discussion is the strength of the prosecution's case. This is not necessarily true in capital defense, but the factor remains an important part of preparation for the crucial Step 7.

Some of the potential weakness, in both the case for capital murder and the case for death, have been identified in Step 1.  Whether to inject them formally as part of a Criminal Demurrer is your call.  These weaknesses must be part of the strategy for negotiating a non-capital outcome.

Included here, simply to stimulate your own creative thinking, is a partial list of potential weaknesses to be investigated as you prepare. They may be more useful as one component of negotiation.  But they are also relevant if the case goes to trial, and so should be considered in any event.  Note that some of the important ones are extra-legal considerations.

Guilt Trial Weaknesses

Premeditation

In addition to the entrée to themes in mental mitigation discussed in Step 1, any suggestion that the killing was not a calculated assassination can be useful in another way.  Forget the legal tests, this issue offers a way to discuss whether the prosecutor really wants to bother with this case as one of the "worst" -- worth the time, money and effort to pursue death.

Self Defense/Provocation

The wise and experienced defense lawyer who mentored your principal author in his early career had this rule about defending murder cases: "If your initial investigation reveals no indication of self-defense or provocation, look again."  It is still good advice, for several reasons.  If you can somehow manage a lesser-included instruction at a capital trial, there are two possible benefits. Jurors may actually compromise and convict of the lesser offense.  Or, in order to win over a few who want the LIO, the majority may promise to vote for a life sentence if the dissenters will go along with convicting of capital murder.  Another great advantage, as we will discuss later, is that matters in sentence mitigation should, whenever be possible, be part of the guilt trial.  Anything at all bad about the conduct of the victim is mitigation, including much that falls far short of establishing self-defense or legally sufficient provocation.

Another Florida case provides an example.  Marvin Johnson killed a popular local pharmacy owner in the course of a robbery after the victim fired on him.  In Florida, like most states, self-defense and provocation are not available to those in the midst of committing violent felonies like armed robbery.  Nevertheless, two of the jurors who voted for life in prison instead of death for Johnson blamed the victim for starting the shooting and one of them was quite emphatic about it!

While it is probably not a good idea to announce a "Blame the Victim" strategy at a press conference, prosecutors and jurors know that a less than perfect victim is a consideration that points away from the death penalty.

Eyewitnesses

Much has changed over the years as the law has begun to acknowledge the inherent flaws in eyewitness accounts.  Check Virginia's law.  Some courts will now permit expert witnesses on the fallibility of this evidence. More importantly, if the state's case is based exclusively or almost completely on eyewitness testimony, the prosecutor will know that there is a problem. This is true no matter how certain the witnesses are. This potential weakness has assumed greater importance recently.  Public and political support for the death penalty is dropping, mainly out of concern for the risk of executing the innocent. If the heart of the state's case is eyewitness testimony, the prosecutor should see both the chance of hurting his career if a mistake is made, and the political cover available if he settles for less than death.

Forensic Evidence

Too many of us have acted for too long as if there was little we could do about the state's forensic evidence.  Maybe that is because we secretly believed that the lab reports had to be the gospel truth. The FBI Crime Lab scandal has disabused us, and prosecutors, of that notion.  In such venerable fields as fingerprints, hair and fiber analysis, results can be questioned and the climate for appointment of independent re-testing experts has improved.

There is more that is eye-opening.  Some of the forensic "evidence" may not be admissible at all, and may be based on junk science. The standards for admission have changed.  For a start, read Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).  (We consider these developments to be so important, they are discussed at length in Step 11, which is devoted entirely to expert testimony issues.)

Some "scientific" fields are phony and some "experts" are phony.  One example of phony science is the "blood spatter" expert.  There is no such field of expertise, though Kenneth Stewart of Virginia was executed after such an "expert" at his trial purported to reconstruct his every act.  The poster boy phony expert may be Fred Zain, who testified in capital trials as an expert serologist.  His qualification in fact turned out to be only 10 hours of chemistry in which he earned a grade of C or above.

The legitimacy of hair and fiber analysis, and even fingerprint analysis, is also under attack and you should be wary of any witness who has been subject to hypnosis.  See Rock v. Arkansas, 483 U.S. 44 (1987).  Forensic evidence is often more persuasive than eyewitness evidence, but prosecutors know or should know that the free ride for government labs and experts is over.

Searches and Confessions

We have found that defense attorneys new to capital cases often devote too much attention to these potential weaknesses.  That is understandable. Search and confession issues constitute familiar territories . . . the everyday stuff of non-capital defense.  Of course, these issues must be addressed, particularly confessions by impaired clients.  In capital cases, however, we have found that if the state really needs a search or a confession, trial judges will deny suppression motions.  This is the law turned on its head.  In capital cases, the law of searches and confessions is even more favorable to the government, if that is possible!  Never tie your defense strategy in a capital case to the expectation that the results of even the most egregious searches or interrogations will be suppressed. (This does not mean that, if the timing is right, the prosecutor's fear of even a small risk of losing on a confession or search issue cannot be part of the negotiations mix.)

Penalty Trial Weaknesses

Vague Aggravators

We have already discussed in Step 1 the "not vile," "no future danger" attacks on vague aggravators.  These factors also raise a host of legal issues that can be the part of your aggressive, expensive motions practice, (Step 8) and therefore currency in plea negotiation.

Felony Aggravators

As noted, some capital schemes assign to felonies like "in the commission of robbery, rape, abduction, etc." the role of sentencing aggravator rather than element of the capital crime.  Wherever they appear, they are subject to the limiting requirements of Virginia's criminal law.  The law of attempts or the duration of the felony, for example, may mean that the client committed the non-capital offense of murder in the commission of larceny rather than robbery.  The same is true of the law of accomplices.  Comparative blame is a very important factor.  Even if the client qualifies for a death sentence under the law of Enmund, 458 U.S. 782 (1982) and Tison, 481 U.S. 137 (1987), outlined in Step 1, if his participation in the felony can be portrayed as less than that of another, this alone could save him.

Victim Fault

Using the legal system to choose who gets executed and who does not is an arbitrary, ugly business.  Most defense attorneys would rather nobody had to participate in it.  Since that is not currently possible, the issue of victim fault must be addressed.  The factor must be played with sensitivity, but a non-capital outcome can be advanced not only by the victim's conduct at the time of the homicide, such as provocation, but also by who he was.  Jurors have declined to sentence to death some murderers of drug dealers.  Prosecutors may be even more receptive to the notion that it is not worth the hassle to seek death for the killer of a bum.  So, if the victim was a drug dealer, bully, abuser or member of a disfavored group in your community, consider that carefully.

Step 5: Investigate the Prosecutor, the Judge, and the Community

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Why?

This important step explains why we thought it necessary to point out in "The Big Picture" (a) that not every attorney should undertake a capital case, (b) the danger of being co-opted by a genteel death machine, and (c) the need for creativity and a thick skin.

It is unfortunate that capital prosecutions are driven by political rather than legal considerations.  It is even more unfortunate that too many are also driven by racial considerations.  This sad fact is current reality, not ancient history.  In June 2000, the U.S. Supreme Court vacated eight death sentences because a Texas "expert" testified that being Hispanic was a factor indicating future dangerousness.  All this means that any behavior of prosecutor and judge that may reveal improper racial or political influences must be investigated.  So, too, must the community where the case is being prosecuted. The community is ultimately responsible for misconduct of its public officials, though its members may be unaware of the conduct.  More importantly, segments of the community may become your ally in ways that you might not have contemplated.

Of course, you will never know of the existence or degree of factors that pollute a fair proceeding unless you investigate.  If you do find unfairness and racism, your findings can be used in the case with complete civility.  Or, you may choose to be combative.  It is not necessary to be personally combative in order to effectively litigate volatile issues.  The way you deal with this kind of evidence should be a tactical decision, based on what is best for the client, not your personal reaction. The nature of the information, however, will almost certainly mean that there will be a hostile response no matter which approach you use.  If you can take the heat, that can be very good for your client.

Investigate What?

What can I do with what I find?

Prosecutor and Judge

The obvious practical value of evidence of improper influences on judge and prosecutor lies in using such evidence to persuade the state to abandon the quest to kill your client.  Alternatively, it is evidence that the prosecutor or judge must be removed from the case.  Litigating racism and political influence is hard ball stuff.

With that in mind, you need only a legitimate and relevant legal doctrine to which your controversial evidence may be attached.  The 14th Amendment has two sources of what you need -- its Due Process and Equal Protection clauses.  As we briefly outline a legal basis for what can be life-saving information whose power is extra-legal, keep in mind that winning on the law is relatively unimportant. It has been 104 years, for example, since anybody won an Equal Protection selective prosecution claim in the U.S. Supreme Court.  That doesn't matter.  The 14th Amendment still provides a vehicle to raise legitimate issues of fairness that have been recognized by the courts. That is all you need to shine light in dark places.

Let us not forget the judge.  The right to an impartial judge has been recognized as so fundamental that denying it can never be harmless error. A very instructive case in point, dealing with a courageous defense attorney in a double murder case, is Taylor v. Hayes, 418 U.S. 488 (1974). See also Virginia Rules of Professional Conduct 8.1-8.5; Canons of Judicial Conduct, esp. Canons 1 through 3.

The legal pegs are there.  Anything in your investigation suggesting that your client will not be treated fairly is not only of practical importance, it is legally relevant -- provided you have the courage to raise the issues.

The Community

Summary

These are but some of the potential benefits of Step 5.  Do the investigation.  You may be troubled by what you find and want to learn more.  If so, we suggest asking for some of Millard Farmer's time.  He is a capital defense attorney experienced in this strategy.  E-mail him at millardfarmer@millardfarmer.com.

Step 6: Talk with the Family of the Victim

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This is a difficult but necessary step.  In a disturbing number of cases, it is not taken.

Why Contact the Family?

When?

As to formal contact that you initiate, not until you have educated yourself about survivors in general and this victim's family in particular.

Survivors Generally

Here are some things that have been learned about survivors, as well as links to two organizations that can provide more information.

You may be able to draw on personal experience if violence has touched someone close to you.  There are also organizations that can help you educate yourself about survivors and sometimes play a role in helping you with the difficult task of establishing contact with the victim's family.  We have worked closely with the founding members of two of these organizations, each of whom had a family member murdered, and could not recommend them more highly.  They are RELIGIOUS ORGANIZING AGAINST THE DEATH PENALTY at http://www.envisioning.org/, and MURDER VICTIMS' FAMILIES FOR RECONCILIATION at http://www.mvfr.org/.

These Survivors

Learning about the family before contacting them can be sensitive work. Questioning others about them creates the obvious risk that this will get back to them before you can meet and will provoke a hostile reaction.  Still, discreet inquiry can be made of people who know and work with family members.  There is virtually no risk, and much to be learned, from consulting public documents and newspaper files.

Who and How?

There is no formula answer to this delicate question.  Perhaps that is why so many attorneys never get around to it.  In each case, considering what you have now learned about the family, survivors in general, and the circumstances of this homicide, there are several options.  Some attorneys make the cold telephone call themselves.  Some send letters asking to meet.  Sometimes it is best that a non-attorney member of the defense team make the initial contact.  It is often a good idea to use a third party intermediary, such a clergyperson, another survivor, or member of one of the organizations mentioned above.

Regardless of the means used to make the first contact, arrangements should be proposed that make the family members feel safe and in control of the meeting.  For this reason, sites such as a church or the family's own home are favored.

What?

The three "Why" categories discussed above can serve as a guide on the sensitive questions of what to say and how to establish a relationship.  We always have something to give.  We can end the family's isolation even as we end their demonization of the client.  We can at least give them someone to talk to.  But it is an uncomfortable process at best.  We do not set out the guide that follows with quite the degree of confidence that we have in the other steps to life.  We do remain convinced, however, that this effort must be undertaken.

What can actually be accomplished at each instance of contact with the family will, of course, vary widely.  At the first meeting, the goal is simply not to increase their pain. We suggest that no requests be made of family members at this time. The approach should be open-ended.  You can serve as a lightning rod for their anger and grief, answer questions and respond to concerns, and seek to have them gain some understanding of your role.  You should also know what support agencies are available should the family need them, e.g. churches, pro bono counseling and therapy services.

At some subsequent point, it may be possible to convey some understanding of the client and his family.  If there is genuine remorse from the client, you can convey it.  It is probably still too early at this point to seek affirmative aid in the case.  But as soon as possible, you want to identify their wants and needs relative to the case.  Do they want more facts about what happened?  Is a primary concern recognition of the dignity and worth of the victim?  Do they value dignity more than revenge?

Regardless of whether you ultimately get any help, professional responsibility and basic humanity concerns dictate that at some point you educate them about the criminal justice system.  Undertaking this can certainly help the client in many instances, especially if the prosecutor has ignored or misled them.  As the relationship develops, these points need to be made:

Conclusion

You may gain invaluable allies in the quest to avoid a death sentence.  Even if you do not, keep the dialogue open.  At the very least, the trial will be fairer if anger is directed away from the courthouse.

As a member of the profession and an officer of the court, you share responsibility for the impression of the criminal justice system that the case will leave with victim family members.

There is nothing wrong with an intersection of basic human decency and good lawyering.

It isn't an easy thing to do, but basic capital defense requires making the effort to relate to the family of the victim.

Step 7: Negotiate Death Out

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cartoon: flea bargain

This is the most important step, the payoff.  This is the reason you got a head start on the prosecutor in the investigation.  This is the reason you worked on the other steps. This is where the option of a trial with a possible death sentence goes out!

The Rules

RULE 1: Always Negotiate

There are too many people on death rows whose cases should have settled.  For a variety of reasons, they did not settle.  Some of those reasons are discussed below.  If they describe your impressions to any degree, please address the matter now.

Rule 2: Never Stop Negotiating

In any successful negotiation, the parties conclude that they have met each other's needs.  The prosecutor may not fully appreciate the extent of his needs the first time he refuses to negotiate or rejects a proposal.  That can change.  Prosecutors who come to see a broader picture through the negotiation process have even been known to elect to go forward non-capital, even though no final agreement was reached.  In any event, how is the client served by allowing the prosecutor the peace of mind of proceeding without being forced to consider issues of economy or justice?

Rule 3: Manufacture Currency

If negotiation involves exchange, then both parties need something to exchange.  Each must have something the other wants or needs.  Capital defendants typically do not come into the case with sufficient currency.  That is why one of your most important jobs, as partly described in other steps, is to manufacture some currency so that there can be a negotiation and so that it can succeed.  Explanation follows.

A Recommended Approach

We recommend that in everything you do, you seek to communicate two very definite messages to the prosecutor:  (a) "There are good reasons that you really do not want to try to kill this particular defendant."  (Here is where some of the "Soft Currency" described below is spent.)  (b) "If you persist in seeking death, I will be obliged to make sure that this is the most miserable, expensive, time-consuming experience you have ever had as a lawyer."  (Here is where some of the "Hard Currency" described below is spent.)

To pursue this approach until death is out of the case will probably require expenditure of both hard and soft currency.  It will also require putting aside egos and posturing.  It will require discussing even the most explosive kinds of hard currency in a dispassionate, but determined professional manner.  Here is some of the currency that can be brought to the table, provided the other steps have been pursued:

Soft Currency

Hard Currency

With respect to plain old dollar costs, keep in mind that capital cases are considerably more expensive than non-capital cases.  Accordingly, you may point out that there are a number of costs that automatically go away as soon as death is out.  Among them are the costs of calling additional jurors, the costs associated with many motions that deal only with capital aspects of the case, and the considerable costs of the full appellate process.  If there are any competing community priorities at all that could be impacted by these costs, they can provide excellent political cover for the prosecutor.  And of course, a principle you know well from your non-capital negotiating experience is that the agreement itself is all that matters.  Once a non-capital settlement is reached, both sides are free to justify it in any way they wish, regardless of what really drove the deal.

A final observation about manufacturing hard currency.  Anyone who gets ethical twinges about a motions and discovery practice that drains resources and costs the adversary money is not considering the reality of today's civil litigation.  If the imposition of transactional costs is an accepted part of disputes between corporations and disgruntled investors over mere money, the practice is certainly acceptable in disputes about human life.  The same look at civil litigation will also reveal the role of painful but truthful extra-legal factors in fostering settlements.  Clients with their lives on the line deserve no less.

A final word about the deal itself.  Only you know the personalities and inclinations of the players in your trial.  There have been times when a plea agreement has included a plea to an offense which, by statute, exposed the client to a sentence of death.  This should never be done without a formal commitment by the judge that the sentence will not be death.  We strongly recommend against an agreement that on its face provides death exposure, and it should be considered only as an absolute last resort in the most aggravated cases, if the commitment from the judge is there.  A terrifying example of the risks is the case of Johnile Dubois, since executed by Virginia.  He plead guilty to capital murder pursuant to an agreement that the prosecutor would not argue for death and would not put on evidence in aggravation.  The trial judge sentenced him to death anyway.  We have seen such pleas go down with life sentences, but only because counsel knew the players intimately.

If things should go wrong in spite of your expectations and a death sentence is pronounced, do what Dubois' lawyer did not.  Immediately move to withdraw the plea, claiming that the adversary process broke down in the case, citing Lankford v. Idaho, 500 U.S. 110 (1991).  The best practice is to steer clear of this kind of risk-taking.  You can do that if you manufacture and spend your negotiation currency with wisdom, persistence and determination.

Step 8: Conduct Aggressive, Creative Motions Practice

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Value/Authority

It is difficult to overstate the value of good motions practice in capital cases.  It can help you on several fronts.  Your motions practice can serve at least three important functions: (1) If a motion is granted, the trial is a little fairer, (2) If the motion is denied, it creates an appellate issue, (3) Whether granted, denied, or pending ruling, motions can create currency for negotiation.

To realize these benefits, all you need is a procedural vehicle to raise the motion and some colorable substantive law basis for relief.  Neither requirement presents a serious obstacle.  As mentioned, every state's procedural system includes authority for the trial judge to decide anything except the ultimate issue. Trial judges come in all shades of fairness and unfairness.  The fair ones will draw upon their inherent authority over the trial process to do what is right.  As to the others, a very capable Illinois capital defender once observed, "They haven't figured out a way to keep us from filing motions yet."

There is also a substantive law basis for virtually anything you want or need.  In addition to specific entitlements to be found in statutes or rules, there are two important residual sources of authority to grant your motions.  Constitutions, state and federal, comprise one source -- in particular the 4th, 5th, 6th, 8th, and 14th Amendments to the U.S. Constitution.  Although it has turned out largely to be an empty promise, capital defendants are supposed to be afforded "super due process." (If no other grounds come to mind, always cite the super due process language of Woodson v. North Carolina, 428 U.S. 280, 305 (1976)).  Another source, often overlooked, is the inherent authority of the court over the conduct of the trial.  For example, you may seek a part of the state's case to which you are not specifically entitled under the discovery rule.  So long as she has not been expressly forbidden by higher authority to do so, the trial judge can give it to you.  This is provided, of course, that she is inclined to do so.  Whatever their leanings, however, trial judges have the power to do almost anything you think would be fair.  These sources of authority mean that you may raise virtually anything by motion.

General Categories

Pretrial motions can initially be sorted into two categories: motions that can be decided on law only, and motions that require the taking of evidence.  You want as many of your motions as possible to be of the second type.  If you are creative, you can come up with more of this type than you might initially believe.  Discussion follows.

In order to preserve the appellate record, some motions will raise only matters of law. For example, trust us, there are systemic constitutional defects in the way Virginia administers its death penalty statute.  In addition to ensuring that all motions are raised on both state and federal grounds, there is another factor to bear in mind.  We never know which issue will catch the attention of appellate courts, so we have to raise them all!  This can mean motions raising claims that the Supreme Court of Virginia has specifically rejected.  In the weird world of capital litigation, this is almost always necessary in order to avoid default and waiver.  "Winnowing" out apparently weak appellate claims should not be done.

Here is one example.  (There are more.)  The state courts of South Carolina and Virginia had repeatedly held that it was not necessary to inform juries that if the accused was sentenced to life in prison instead of death, he would never be eligible for parole under state law.  Some defense attorneys persisted in making a record, moving that jurors be informed.  Then, in Simmons v. South Carolina, 512 U.S. 154 (1994), the United States Supreme Court held that due process required the disclosure to jurors.  Those who had raised and preserved the issue, sometimes in the face of hostility from the trial judge, got new sentencing hearings -- another chance for life.

A central reason that motions if at all possible should require evidentiary hearings is to impose costs on both court and prosecutor, thereby encouraging a negotiated outcome to the case.  Motions that can be decided as a matter of law only, though sometimes necessary, are less effective in that function.  Sometimes, with imagination, even motions that appear to raise only questions of law to preserve the record can be made a little more costly.

Though we may have to litigate some motions on law alone, we should always look for ways to make even this type more of a burden.  Far more important in furtherance of all three functions of motions are those that require evidentiary hearings.  Lengthy evidentiary hearings.  Hearings that sometimes make public sensitive evidence. Some specific types of such motions are discussed below.

One is an example of a great way to deal with a problem that surfaces far too often in capital cases -- the jailhouse snitch.  From our experience, we conclude that if you are well on your way to trial and the state's case remains really weak, you can just about bet your inadequate fee that a snitch will soon appear.  When this happens, you could make life easy for the judge and prosecutor as this way:  File a "Motion to Reveal the Deal," get the snitch's criminal record, cross-examine vigorously at trial.  A little more thought, however, and you can make things infinitely more difficult for the state.

Consider this.  The testimony of the snitch may not be admissible if the government was unlawfully involved in using him to secure the "admission" from your client, or to monitor his statements. The basic rules about this are found in Massiah v. United States, 377 U.S. 201 (1964), and United States v. Henry, 447 U.S. 264 (1980). Further, the evidence law of your state likely provides that some witnesses can be so unreliable as to be precluded from testifying as a matter of law.

These legal issues raise several questions that may be resolved only after extensive presentation of evidence.  How did the client and the snitch get in proximity?  What communications did the snitch have with prosecutors, their representatives, cops, or other government agents?  Who was in the vicinity when the alleged "admissions" were made?  What did they see or hear?  What is the snitch's track record for snitching in other cases?  Under what circumstances and for what benefit?

Consequently, the evidence required to decide your "Motion to Preclude Snitch Testimony" can include:

To a lesser degree, some of these opportunities are available when the snitch is a co-defendant rather than a jailhouse informant.  Use of snitches to bolster weaknesses in the prosecution case is deplorable in all instances.  The least we can do is make it a costly, time-consuming, and unpleasant experience for all concerned.

Another category, motions for resources, can require the taking of evidence and create currency for negotiation.  For too long, too many of us saw the defense role as essentially passive.  We disputed what we were confronted with, but did not create our own case.  As a part of this approach, we might subject the state's forensic witnesses to cross examination as best we could, but we seldom sought to conduct our own investigation with our own experts.  The recent scandals with the FBI lab and the exposure of numerous phony prosecution experts should be enough to bring a change in our approach.

Statutes and rules in some states, even the death belt states, provide for some partial redress of the resource imbalance between accused and the state.  In addition, the basic constitutional authority is Ake v. Oklahoma, 470 U.S. 68 (1985).  Under Ake, due process requires that you be provided with the "basic tools" of an adequate defense if you cannot afford those tools.  Ake's specific holding was that the defendant had a right to his own mental health expert once he showed that sanity would be a significant factor in his defense.  Post-Ake decisions have recognized the "basic tools" provision as a requirement for provision of a whole range of experts provided that an extensive and individualized showing is made that the expert is essential to the defense.  See, e.g. Little v. Armentrout, 835 F2d. 1240 (8th Cir. 1987) (On facts of that case, error not to provide defense with an expert in hypnosis).

It must be emphasized that the pretrial showing required is substantial.  In seeking an investigator, fingerprint and ballistics expert, for example, defendant was required to produce much more than "undeveloped assertions."  He had to show "specific facts concerning the costs, terms and purposes of the experts."  Caldwell v. Mississippi, 472 U.S. 320 (1985), Caldwell v. State, 443 So.2d 806 (Miss. 1983), and Messer v. Kemp, 831 F.2d 946 (8th Cir. 1987), will give you the flavor of this enterprise.

In spite of the rigorous showing that is required by law, there are several advantages to resource motions:

It is impossible to provide an adequate description of good capital motions practice, even in this bare outline.  That is probably because it is impossible to capture in detail what it means to be aggressive and imaginative. There are motions that will stop a capital prosecution in its tracks that none of us have yet thought of.  Our experience, however, is clearly that this is the stage of a case at which heretofore inflexible prosecutors often begin to re-think their position on negotiating a non-capital disposition.  Moreover, this is the stage of this grim business that can actually be fun. In criminal defense, it is never a bad day when what is on the docket is not the ultimate fate of the client, and when we have made our adversary work his tail off.  So, brainstorm with other counsel. Consult the sample motions found in the links.  Don't file them as is, individualize!  Use your imagination.  Impose costs.  You can make death go away right here.

Step 9: Get Everything the Prosecutor Owes You, NOW!

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You already know that criminal cases are fact-starved.  The early steps have thus emphasized intensive investigation. You should add as many resources to your investigation as you are able to wring from the system.

There is another source of information.  Everyone assumes they understand it.  Few really do.  It is the prosecutor's due process obligation to your client, defined by both the precursors and the progeny of Brady v. Maryland, 373 U.S. 83 (1963).  In too many cases, Brady practice has become a ho-hum affair; a routine exchange of documents and diversionary dances that excites no one.  Although some prosecutors have learned that honest openness is really to their advantage, too many are reluctant to divulge anything seriously problematic for their case.  The latter class of prosecutors seems to be over-represented in capital cases.

The only time anyone gets interested is after the trial, when what the prosecutor hid from us is sometimes discovered.  After the trial is usually too late.  To make the prosecutor earn her generous salary and push the case toward a negotiated settlement, you should focus on pushing her, and the judge if necessary, to the wall PRETRIAL.  There is a remarkable case that will help you do that.  It is Kyles v. Whitley, 514 U.S. 419 (1995).  Read it.  By all rights, references in the future should be to the "Kyles Doctrine," rather than Brady.  The actions and tactics we outline here can be called "Pretrial Kyles."

Pretrial Kyles -- Reviewing the Rules

Pretrial Kyles -- Tactics

The plan is fairly simple.  You make your request to the prosecutor and motions to the court, as narrowly tailored and in as much detail as possible.  Then, armed with legal authority that recognizes each of your requests as within the scope and ambit of Kyles/Brady, you get timely compliance or a court order to comply.  The order should require disclosure by a date certain, sufficiently pretrial for follow up action by you if needed, or a representation on the record that the item does not exist.  Here, another caveat.  Beware of prosecutor's "open files," and remember that in a capital case, if it's not on the record, it did not happen.  It's OK to accept the offer to go through the prosecutor's file, but the record at some point must reflect what was there.  For an example of the confusion that can arise, see Strickler v. Greene, 119 S.Ct. 1936 (1999).

Because we are presumed to know better than the prosecutor what information may be defensively significant, the Supreme Court long ago placed upon us the duty to be specific. United States v. Agurs, 427 U.S. 97 (1976).  Fair enough.  The point is, if we present the trial judge with a motion for disclosure of all police documents relative to license numbers of vehicles observed within two blocks of the crime scene, within twelve hours of the crime, and a case holding that such a list is within the scope and ambit of the disclosure obligation, what are the court's options?  They would seem to be only to order either production of the list or a representation that the document does not exist.  Here, we could not care less how the "materiality" of the list might be viewed in the great scheme of things down the road.  We want the item, and the law would seem to leave very little wiggle room for taking the position that it will not be disclosed.

A final word about tactics.  It may seem obvious, but get a ruling!  This, of course, applies to your entire motions practice.  We have seen too many trial records where the fate of Kyles/Brady motions just disappears from the screen.  In other cases, there has been a favorable ruling and a disclosure order, but no compliance and no record of follow-up motions.  In fact, in one such motion hearing, the judge was reviewing a detailed list of requests.  Periodically, he would look up and say, "If it's Brady you get it. If it's not, you don't."  For this, we pay judges money?

If you don't get a ruling, and follow-up if need be, you don't get the stuff you need before trial and you don't have much of an appellate issue either.

Pre-Trial Kyles -- The Law is Helpful!

After the focus is on actually getting the stuff before trial, rather than post-conviction as in Bagley, the law is pretty much on our side:

In fact, post-Kyles research shows that courts have recognized a wide array of items as exculpatory.  Perhaps some of the courts were not concerned about this because they were ultimately going to deny relief under Bagley.  As we have seen, that doesn't matter.  If the item is exculpatory it is part of the prosecutor's impossible "cumulative assessment" responsibility.  For whatever reason, courts have recognized a lot of stuff as exculpatory.

If you want something, chances are you can find that it has been recognized somewhere.  Here are a few examples from our work:

Conclusion

Virginia's discovery statute is limited. Va. Sup. Ct. Rule 3A:11 allows for some general reciprocal discovery and discovery of future dangerousness evidence in capital cases (Va Code Ann. §19.2-264.3:2). You may also try to gather more from the prosecution by seeking a bill of particulars under Va. Code Ann. §19.2-230. It is imperative, however, for you to expand the scope of this discovery by seeking as much Brady/Kyles evidence as possible.

Because our experience has been primarily in a state where trial by ambush is the accepted norm, we have been required to examine the constitutional duty to disclose from every angle.  See Death by Ambush. We have learned that there is a lot of law on our side, but it is far from self-executing. Prosecutors and judges must be informed and pushed.  But, with some creativity, there is little about the state's case that cannot be characterized as potentially exculpatory.  Finally, more important to this 15-Step process, we have learning that pressing the issue pretrial can make prosecutors and judges uncomfortable and promote the non-capital resolution we seek.

Step 10: Investigate the Venire

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Why Bother?

Few attorneys take this step.  It requires some work and there may be no payoff.  When the investigation does bear fruit, however, the rewards fully justify the hours invested.  Here is why.

The rhetoric of federal courts about concern for racial and gender equality is occasionally backed up with some substance.  If the system your state employs to summon folks for service on grand juries and petit juries operates in practice to deny a fair cross-section of the community an opportunity serve, the client has an issue that may be helpful.  If it operates that way because government officials intend it to, then even better for the client. There are two possible benefits.  First, the trial judge may uphold your challenge to the array or venire. This would happen, of course, after yet another motions hearing requiring that evidence be taken. The court will then need to dismiss the jurors called to return indictments and try all cases for the term. The court must dismiss with leave to recharge the indictment against the client. The court must then reconstitute the venire by a method different than the one to which everyone is accustomed. The burden will be on them to get it right, or you can start over. All this will materially improve the climate for a negotiated settlement.

Second, for a variety of reasons, including plain stubbornness and ignorance of the law, the trial judge may deny the motion.  If you have in fact made out a prima facie case on the record, you will have a very special type of appellate issue.  Unlike virtually every other appellate claim, this one does not require that you show prejudice. Prejudice is presumed.  If the claim is found to have merit, it is not subject to harmless error analysis.  Consider the plight of the prosecutor in Vasquez v. Hillery, 474 U.S. 254 (1986). The conviction was overturned, with leave to retry, sixteen years after the original trial.  Proper selection of the array would have produced only one more member of defendant's race on the grand jury.  California complained vigorously, but petitioner had been pressing his claim all along.  Nobody short of the Supreme Court would listen.

We hope we have gotten your attention now about this step.  However, we remain concerned that attorneys will be dissuaded from investigating the venire if the process looks overly complicated.  Consequently, we are offering a very basic outline.  We suggest two ways to fill out the outline.  Consult one of the mentors available through the links to this site, or move the court for expert assistance.  In any event, we believe that following the instructions set out here can at least get you on the board if necessary.

The Two Potential Claims

There are two Constitutional grounds for challenging the array.  While the client is not entitled to a "jury of his peers," he is entitled to both a grand jury and a petit jury pool from which no cognizable group has been excluded by the operation of the selection system or the intent of those who run it.  If the array does not represent a fair cross-section of the race and gender mix of the jurisdiction, the 6th Amendment right to trial by impartial jury has been violated.  If the disparity is the result of intentional action, the Equal Protection clause of the 14th Amendment has been violated.  The legal tests and required evidence for each claim are virtually the same, except that the 6th Amendment claim does not require proof of intent.  So, it is legitimate to ask why we should bother with an Equal Protection claim at all when intent is so difficult to prove? The answer is that any evidence of intentional discrimination on the basis of race or gender changes the whole atmosphere of the litigation.  It is more likely to get the court's attention and it is embarrassing to boot.  Tony Amadeo could testify to this.  He was on death row when an interesting document was found.  It was a memo from the prosecutor to the jury commissioner directing limits on the number of blacks and women to be placed on the master jury list.  See Amadeo v. Zant, 486 U.S. 214 (1988).

The "Tests"

As noted, the 6th Amendment requires that the array from which a court draws grand and petit jurors must represent a fair cross-section of the eligible community.  This means an array from which no cognizable group has been systematically excluded.  The key words are cognizable group and systematic exclusion.

The first requirement will not present a problem.  You must show that the excluded group is a distinctive group in the community -- cognizable. There is no consensus on how many groups are distinctive, but groups identified by race and gender definitely count. Leave it at that for now.

The second requirement is to show that the group's representation in the venire is not fair and reasonable in relation to their numbers in the community. The third is to show that the way the selection system operates causes the under-representation -- again, regardless of how it is intended to operate.

The Equal Protection claim is similar.  The number of cognizable groups is smaller, but those identified by race and gender are still included.  The second requirement is that the distinctive group has been singled out for different treatment under the law, as written or as applied.  (A third requirement, that the under-representation stretches over time is now suspect.  Don't worry about it.)  Finally, again in language similar to the 6th Amendment claim, you must show that the selection procedure is susceptible to abuse or is not neutral.

Once you make out a prima facie claim, it becomes the state's job to justify the operation of the system.  The state may rebut the Equal Protection claim by establishing no discriminatory intent.  That is, of course, provided there is no Tony Amadeo memo lying around and under-representation has not been going on for years.

The only way the state can rebut the 6th Amendment claim is by showing that the system as it operates serves a significant governmental interest justifying the imbalance.  In Taylor v. Louisiana, 419 U.S. 522 (1975), for example, there was no denying that the system required that women, not men, jump through extra hoops to be eligible for jury duty. Not surprisingly, they were severely under-represented.  Louisiana was left to fall back on a "special place of women homemakers in society" justification.  It being 1975, not 1875, the Supreme Court was not impressed.

Making the Prima Facie Showing

Part of this task is relatively easy.  Part of it takes a little more work.  The easy part is determining whether a cognizable group is substantially under-represented.  For example, assume that the grand and petit jury pool is to be drawn from Killem County. Comparing the number of blacks and women summoned for the term of court to the number of blacks and women in the 2000 census data for Killem County will tell you whether there appears to be a disparity.  (Again, this outline is basic.  Expert assistance may help reveal an actual under-representation not apparent in this comparison.)  In this example, if there is under-representation of blacks or women, how much is "substantial"?  Disparities recognized by the courts can be calculated in two ways.  "Absolute Disparity" measures the difference between the percentage of the group in the jury pool and the percentage of the community that the group represents.  If 30% of those called for jury duty for your term in Killem County are women and 50% of the women in the county are lawfully and constitutionally eligible for jury service, there is a 20% absolute disparity.  Courts have recognized 10% as significant.

More appropriate for use with smaller numbers is a method called "Comparative Disparity."  This denotes the percentage of the cognizable group in the array divided by the percentage in the community.  In the example, the comparative disparity would be 60%.  That is, only 60% of the number of women needed to reflect their segment of the community were summoned.  The Supreme Court has recognized a comparative disparity of 38% as significant.

If you do the numbers and find no problem, you may decide to stop and go on with other tasks.  If the numbers are at all suspicious, however, keep going.

Now comes the hard part -- showing that the the operation of the system causes the gap.  The key word here is discretion.  The way the world is organized today, where those responsible for the operation of the selection system have leeway, the cognizable groups are not likely to be beneficiaries of the choices made. The discrimination that shows up in that leeway may be exercised unconsciously, completely without malicious intent.

The first place to look for discretionary "joints" in the operation of the system is in the wording of your state's selection statute.  For example, Va. Code Ann. 8.01-345 only commits jury commissioners firmly to random selection techniques using voter registration lists.  More inclusive sources, such as tax rolls, drivers license rosters, and telephone books are authorized "where feasible."   Who decides what is feasible? What if blacks don't register to vote in numbers at all close to their share of the population?  Similarly, Va. Code Ann. 19.2-194 authorizes the chief judge of each circuit to select as grand jurors persons of "honesty, intelligence and good demeanor and suitable in all respects to serve as grand jurors."

The system on paper is not the only place to look for explanations when distinctive groups are under-represented.  For example, in reality, how does one who has received a summons get out of jury duty?  The answer, as we once learned, may be simply a phone call to a clerk of court, who exercises sole and unreviewable discretion.  It may also be that excuse requests must be presented to the discretion of a judge. There are more than a few still around, Taylor notwithstanding, who are sympathetic to the "special role of women in society."  The point is that the actual operation of the system has discretionary joints and the play in those joints may help you make out the 6th Amendment claim.  Looking into how the system works to produce a disparity may also lead to evidence in support of a 14th Amendment claim.

Two procedural/tactical points to conclude.  First, to avoid waiver, challenges must be made early -- in any event, before your petit jury is empanelled.  Another point should be emphasized, in memory of a Virginia inmate whose attorneys underestimated the ignorance or duplicity of the courts.  You must take pains to ensure that the judge understands and the record reflects the true nature of the claim.  One way courts have ducked this issue is to recharacterize it.  Your challenge is to the array, not to the petit jury itself.  The perfectly lawful exercise of strikes for cause and peremptory strikes may result in a petit jury that in no way represents a cross-section of the community. Do not let the court mischaracterize your claim.

Conclusion

You may find that these days, most of the time, the venire was lawfully selected.  If you can obtain expert assistance, you will find a greater number of defects.  In any event, if there is a disparity, there is much good for the client that can be done with it.  The absence of any requirement to show prejudice alone, in our view, makes the investigating the venire worthwhile.  So, of course, does the capital nature of the case.

Step 11: Evaluate the Experts: Yours and Theirs

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If the case has not been settled by now, it is time to give extra attention to the upcoming trial.  The fact that there will be a trial in no way calls for an end to the "hard currency/soft currency" effort to achieve a settlement.  Those efforts continue through the trial, and even beyond.

Making some decisions about experts is important because those decisions will have significant impact on the way your entire case is presented.  We concentrate here first on defense penalty trial experts.  Some of the comments, of course, will apply to all experts.  The use of other defense experts, such as forensic and scientific experts, may be shaped by the success or failure of the effort to limit prosecution expert testimony.  This section also discusses some ways to fight that fight.

Unlike most non-capital cases, 80-90% of capital cases will involve experts on one or both sides.  It is particularly important to decide whether your experts will testify if there is a penalty trial and how their input can complement other witnesses.  That, in turn, depends on how capital juries perceive expert testimony.  Fortunately, there is good empirical data available on this important subject.

As part of the effort to keep this outline as basic as possible, we have not loaded you up with citations to scholarly journals.  So far, we have considered a basic understanding of mental retardation to be important enough to urge you in Step 3 to read the article by Ellis and Luckasson.  On the critical subject of how your evidence will play before a capital jury, we recommend taking the time to read two more articles. First, for real world information on experts and other witnesses, read Scott E. Sundby, The Jury as Critic: An Empirical Look at How Capital Juries Perceive Expert and Lay Testimony, 83 Va. L. Rev. 1109 (1997).  This section draws on Professor Sundby's work and our experience, including our participation in another portion of the study that is cited in the article.

Defense Penalty Experts: Cautions

Obtaining penalty trial experts can be comparatively easy in a capital case.  Statutes and rules often provide for them in capital cases only.  (Even Texas provides a pittance for experts.)  This can cause over-reliance on them by defense attorneys who (1) are overwhelmed by the magnitude of their responsibility and the complexity of the work required, and (2) want to be sure to cover every base and protect themselves. Remember, to borrow one of Sundby's metaphors, that the expert is no more than one player in the orchestra, and not a soloist.  You are still the composer and conductor. You decide if, and how, the expert is to play.

Part of over-reliance can be an implicit assumption that if the expert has something helpful to say, then of course she will testify.  Several cautions counsel against such an assumption.

First, even if the expert testifies, if the point you are trying to make is important to your case, the expert should not solo.  You will almost never win a "battle of the experts" by the sheer force of your expert's credentials or the truth of her conclusions.  Juries view experts as "hired guns."  To make matters worse, Sundby's data shows that they are even more scornful of the testimony of defense experts.  On the other hand, properly used, expert testimony can be used by jurors to give themselves permission to do what you have persuaded them by other evidence to want to do.  So, the expert can testify as accompanist.

Experts, particularly penalty trial experts, can also be of great assistance without testifying.  They can educate you, evaluate the strength of your positions, and help you rebut the prosecution's case for death.  As you overcome the assumption, and decide whether the expert will be a witness, consider that there are reasons you may not want to call even some very capable experts.  Among them:

Alternative Strategies

Whether the expert testifies in a supporting role or does not testify at all, there are two other kinds of witnesses that deserve serious consideration.  One category can give you most of the benefits of expert testimony, with virtually none of the drawbacks.

The Lay Expert

We all remember from law school that an "expert" is not just a person with a string of degrees and fancy credentials.  An expert is simply someone deemed by the court to know more about a particular subject than the average juror.  A principal advantage of experts is that they are permitted to give opinions where ordinary witnesses are not.  The fancy degree expert, however, is subject to having his opinions and conclusions rebutted by the fancy degree expert on the other side -- the infamous, and unpersuasive, "battle of the experts."  Consider, however, the "lay expert."  A person more qualified than the jury, but without a Ph.D.  Such witnesses are much tougher for the prosecution to deal with.  They can give opinions, and they are very difficult to rebut with counter-expert testimony.

The case of Susan Smith, the South Carolina woman who drowned her children and lied about it for nine days, provides an excellent example of the use of lay expert witnesses.  One of the mitigation themes was the effect on Smith of her history as a victim of incest.  This was a powerful story, not to be left to the psychiatric expert alone.  Consider how much more difficult it was to rebut the "lay expert" -- an incest victim who now counsels other victims.  Other very persuasive lay expert testimony in that trial came from corrections officers who were Smith's jailers.  They provided a combination of expertise on incarceration and personal knowledge of the mental condition of the client.   Where could the prosecution find an expert to rebut that?  A similar link between a field of expertise and personal knowledge of your client may be found in his schoolteachers, ministers, or even former employers.

Finally, regardless of whether the expert testifies, it is essential that the conclusion the expert might give be broken down into as many pieces as possible and those pieces presented by lay witnesses.  For example, even if hearsay exceptions apply allowing the expert to draw on documents like a social history to reach conclusions, it is far better to assemble friends and family members to testify to the components of that history.  First, volume counts.  You have a stream of people who care about the client and don't want him killed.  Second, and equally important, it is virtually impossible to cross-examine these witnesses.  If you are presenting a mental impairment, each witness who testifies to their personal observation of an incident of bizarre behavior is unimpeachable.  Such witnesses are testifying to the historical fact of their observation. They were there. They are not offering conclusions or opinions.

Litigating Prosecution Experts

In addition to carefully considering the use of your experts, give some thought to messing with those proffered by the prosecution.  An increasingly important part of active defense is not to sit by passively while some prosecution shill applies a veneer of certainty to the case for guilt or the case for death.  To be frank, research shows that you will completely exclude their expert testimony less than 10% of the time.  Further, with courts ostensibly applying the same legal standard, the prosecution will be much more successful in attacking your experts. That is the way the world is at the moment. But once again, there is lots of good, legitimate stuff to litigate, whether you win or lose. And it's all currency for negotiation.

As we discuss, the tests used by courts to assess expert scientific testimony are in a state of flux. Good.  In all of them, however, there are some common requirements. Prosecution experts can be expected routinely to fail one or more of these requirements, providing litigation opportunities.  (Which should be accompanied by renewal of your Ake motions.  See Step 8.)

The Testimony Must Be Relevant

It must meet the basic requirement of being probative of something at issue in the case.  Additionally, it may be required to be "helpful" to the trier of fact.

The Expert Must be Qualified

Getting a degree from a correspondence school listed on the back of a matchbook cover, and then having experience testifying in 2000 cases for the state may qualify, but certainly should be challenged.

The Expert Must Be Qualified in an Acceptable Field

As one author has observed, and we will illustrate, today's marketplace produces recognized "experts" in fields that have no place in a courtroom. The marketplace is incapable of distinguishing astrology from astronomy. Further, some fields have only the courtroom as their market place.  If the validity of these fields is not challenged there, it will not be challenged at all.

The Qualified Expert's Relevant Testimony Must be Within the Scope of Her Expertise in the Recognized Field

Experts who have made it over the first three hurdles must be held in check.  Medical Examiners, for example, are notorious for testifying beyond their expertise.

Numerous opportunities are presented by these basic principles, and the law governing their application.  Too often, the opportunities are overlooked.

An example, mentioned earlier, is a Virginia case that ended in execution. It involved a "blood spatter" expert.   From the location of the blood at the crime scene, this genius constructed a detailed account of how the accused killed his wife and child and placed them in bed together.  It was a story of malicious anger, much more sinister than the truth of this tragic, domestic homicide case.  The killings in fact involved the all too familiar aspect of desperate fear of loss of family, aggravated by hostile in-laws. The "expert" was no more qualified than the bailiff to give his theory. "Blood Spatter" is a bogus field.  The detailed scenario recounted was far beyond even any expertise that could be gained in the bogus field.

Another field of "science" subject to attack under the law summarized below is the prediction of future dangerousness.  You may use various types of evidence to show that the client will not be dangerous if he is imprisoned rather than killed.  You may also choose to present expert testimony that the client will pose no threat.

The prosecution will likely employ a hack expert like the now-defrocked James Grigson in Texas.  Grigson, like Arthur Centor in Virginia, put men on death row with his absolute expert certainty that they would kill again. Such testimony is junk.  Long term predictions of future dangerousness are notoriously unreliable.  VC3 has a number of resources--psychological literature, motions and more--to assist you in making these claims.  Please contact us. You may choose to present expert testimony to show that the Grigsons and Centors don't know what they are talking about.  (But keep in mind the basic rule of persuasion, however.  Experts can't do it alone.  You have to show jurors in a hundred little ways that there is nothing to fear from the client.)

Newly Developing Tools for the Challenge!

The highly recommended readings for the subjects summarized here are Frye v. United States, 209 F. 1013 (1923);  Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993); Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167 (1999); MODERN SCIENTIFIC EVIDENCE, Volume 1, West Publishing (1997).  (Much of this summary is drawn from this excellent treatise.)

In basic terms, Frye requires that expert evidence be "generally accepted" in the scientific field to which it relates.   Particularly with respect to suspect fields like blood spatter, Frye invites a challenge.   The fact that "general acceptance" is unclear is only one problem for these fields.  The narrower and more suspect the field, the less likely it is that it will have undergone any meaningful scrutiny.   Astrological forecasts are "generally accepted" in the field of astrology, but there is little debate in that community about the validity of astrology itself.  Further, because of the changing legal landscape described below, jurisdictions retaining Frye present the opportunity to challenge the test itself.

The Daubert expansion of Frye appoints courts as gatekeepers for the admissibility of expert testimony, principally dealing with scientific evidence.  Its non-exclusive list of factors to be weighed includes general acceptance, but adds several other factors designed to help the court distinguish science from pseudo-science.  These deal with whether the expert's theory is capable of being refuted or validated and whether efforts to test or refute the theory have actually been conducted.

Potentially more significant for us is Kumho Tire.  After Daubert, the question remained whether its requirements were limited to purely "scientific" evidence. (Daubert involved an expert's evidence of general acceptance of studies concluding that use of the drug Benedril did not increase the risk of birth defects.)  The answer in Kumho Tire was no.  The gatekeeping responsibility of the judge extends to all expert testimony and requires the Daubert inquiry into both relevance and reliability.  Under Daubert/Kumho Tire, for example, it is highly unlikely that "Battered Woman Syndrome" evidence is admissible.  That may be good or bad for you in a particular case, but illustrates the evolving standards on expert testimony and our obligation to use these changes to generate issues in capital cases.

These decisions are not of constitutional stature.  They are interpretations of the Federal Rules of Evidence.  But they have generated significant and varied responses in state courts. This unsettled legal landscape presents us with the opportunity to advance in good faith any tests that will help the client in a given situation.  In 1997, the states were widely divided on the question of adopting Daubert as state law.  Nineteen states, including Texas, accepted the Daubert principles.  Eleven, including Florida, elected to stick with Frye.  Eight states have announced active reconsideration of the standards for expert testimony.  Four, including Virginia, remain undecided.  The effect of Kumho Tire on all this yet to be determined.

If the law is "that which is boldly asserted and plausibly maintained," all the recent developments provide an opportunity and obligation to attack phony fields of expertise and know-everything experts who are over-represented in the prosecution of capital cases.

Step 12: Get the Best Jury Possible

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If the case proceeds to trial, this may be the most critical step.  Obviously, the most thoroughly investigated, prepared and presented case is useless if the audience cannot or will not listen.

Jury "selection" is an area of trial practice in which we lawyers grossly overestimate our skills.  Ignoring volumes of evidence to the contrary, we all think we know how to "pick" a jury.  We are wrong.  We would do well to recognize these limitations.  Further, in capital cases, the current reality dictates a more limited objective than any attempt to "select" twelve people who will love our case. We do well if we achieve a modicum of fairness by excluding the meanest and most fearful, and empowering one or two of those who remain.  It is also important to deal with attitudes about race.  To accomplish even this, it is essential to secure and conduct meaningful voir dire.

Securing and Conducting Meaningful Voir Dire

SECURING

Some of you may have little or no difficulty obtaining from the trial judge both the time and the latitude necessary to the objectives outlined above.  For the rest of us, the word is INSIST!  Meaningful voir dire is a necessity.  The kind of inquiry we need is not produced by hurried, yes/no questions and answers.  It is not the result of pointless, stock questions from the judge, on the order of "will you follow the law," "do you know of any reason you cannot be fair to both sides," and the like.  You must secure a decent opportunity to speak with prospective jurors, or the record must reflect your objection to the procedure, broadly and narrowly.   By broadly and narrowly, we mean that denial of meaningful voir dire is itself an appellate claim, and a part of another, larger claim that includes everything that contributed to denial of 6th Amendment right to trial by impartial jury.

Nevertheless, given the extent of appellate deference to trial courts in this area, you want the voir dire, much more than the appellate issue.  That may require negotiation and compromise.  Some attorneys with whom we work have been able to strike this deal with hurry-up judges:  "Give me 15 minutes with each prospective juror, your Honor.  Leave me alone for that time, and things will move right along."

You should also request individual sequestered voir dire.  It is both fairer and more efficient that the answers of one prospective juror not contaminate others sitting on a panel.  If there is resistance, another compromise (to be proposed more diplomatically) is that the judge will ask the meaningless stock questions to the pool and those who are not excused at that point will be examined individually by counsel.

In the same vein, both fairness and efficiency are served if a questionnaire has been completed by prospective jurors and distributed to counsel prior to the trial date.

The courts have said again and again that the trial is virtually everything in a capital case.  A very real presumption of finality attaches to a guilty verdict and death sentence.  It is, therefore, essential that we do everything we can not to be rushed.

CONDUCTING

If you have gained the opportunity to converse with prospective jurors, it is important not to waste it by making the same mistakes that judges make.  Asking jurors to indicate by yes/no answers whether they agree with your statements of the law is wasting some of your precious 15 minutes.  (E.g. "Do you agree that my client is not required to prove anything?"  "Do you agree that he is presumed innocent?"  "Do you agree that the state must prove him guilty beyond a reasonable doubt before you will vote to convict?")  Sprinkle in a few more legal concepts like "mitigation," "aggravation," and "sensible of any bias or prejudice" and you truly have an event where the lawyers in the courtroom are talking to one another and the prospective jurors are mere scenery.

Finally, consider the context of this exchange.  The poor juror is in a completely strange and intimidating setting.  Everyone is conducting an artificial exercise.  Under such conditions, how can we expect to learn the truth from jurors about issues they are being asked about for the first time in their lives?  The only way to make any progress against these obstacles is to try to have a conversation.  In our everyday affairs, people learn about one another through conversations.  They do not converse in the manner of Civil Case Interrogatories.  That is the reason we have resisted the many requests we get for "a list of voir dire questions."   If the voir dire questions are from a list, the answers are likely to be short, close-ended, and uninformative. You need open-ended, conversational questions that elicit narrative answers.  If you keep the law and the themes outlined here in mind, you won't need a list.

Eliminating the Killers

Obviously, you want to get rid of pro-death jurors and retain those who have reservations about a death sentence.  You certainly want to be rid of those who will not be receptive to your particular case for life and retain those who will give it a fair hearing.

The current law governing challenges for cause makes it somewhat easier to get rid of killer jurors than to save the humane ones.  Two basic cases stake out the battlefield: Wainwright v. Witt, 469 U.S. 810 (1984), and Morgan v. Illinois, 504 U.S. 719 (1992).  Witt provides that a juror is not qualified if her views on the death penalty would "prevent or substantially impair" her ability to follow the law.  Since the law allows for death sentences, this standard can be used to disqualify a great number of jurors with scruples against imposing death sentences.  (Before Witt, it was assumed that scrupled jurors could be disqualified only if they made it unmistakably clear that they would never vote for death no matter what the evidence.)  Witt also commands federal, but not state, court appellate deference to the rulings of the trial court on this issue.

But many killer jurors are also "substantially impaired" by their views from following the law.  That is where Morgan comes in.  A mandatory death sentence is unconstitutional for any offense, no matter how legislatively defined.  So, a prospective juror who would vote for death if satisfied of guilt is not qualified. Morgan reaffirmed that.  Similarly, a prospective juror who strongly presumes that death is the appropriate sentence is not qualified under Witt.

Also, there is more to following the law than just not being an automatic death juror. The law requires that jurors consider that vast array of evidence the courts have recognized as relevant to a sentence less than death.  (See Step 2)  The law does not require that jurors give controlling weight to mitigating evidence, but it does forbid giving it no weight.  The juror who cannot follow this law is not qualified under the Witt standard. In one of our cases, a potential juror answered quite honestly that he would consider anything about the circumstances of the killing that might suggest leniency but he did not care at all about the defendant's prior life and would not pay any attention to it.  Challenge for cause granted.  But if voir dire had not exposed this attitude, counsel's carefully prepared case, documenting a history of physical and sexual abuse helping to explain the crime, would have fallen on at least two deaf ears.

Further, a juror who presumes that, if the client is guilty of capital murder, he will commit violent acts in the future is not following the law in states where the prosecution must prove future danger as an aggravating factor.

Finally, Morgan also provides some help in the critical effort to secure meaningful voir dire.  The killer jurors at issue in that case all responded dutifully and affirmatively to the judge's stock questions about whether they could be fair to the defendant and whether they would follow the law as the judge gave it to them.  That was held to be not good enough.

Saving the good ones?

It is sometimes possible to rehabilitate jurors who don't like the death penalty, but under Witt it is much more difficult than it once was.  Unfortunately, in practice, the standard is employed to get rid of many more of these folks than their pro-death brothers and sisters.  More than one judge has summarily dismissed death-scrupled jurors while undertaking his own rehab of Morgan killers.  It is to be hoped that your judge is fairer than that.  But that is why if you are in a situation where you must ration your voir dire time, we recommend that you spend most of it identifying and removing killers rather than trying to save those who say initially that they could not impose a death sentence.

On the other hand, if you have a fair and generous judge, you may consider a combination of two approaches in an attempt to save an anti-death juror.  The voir dire should emphasize (a) the importance of a citizen's duty to serve on juries, (b) the need for all segments of the community to be represented if justice is to be done, (c) the fact that the law never requires that one vote for a death sentence.

Along with the "citizen's duty" approach, you may consider the "worst crime" approach to eliciting from the potential juror the response that, at least in some cases, she would consider imposing a death sentence.  The general thrust is to find a hypothetical or notorious set of facts that would prompt the essential answer.  Ted Bundy and John Wayne Gacy provide some notorious benchmarks.  Sometimes shown to be effective also is asking the prospective juror to picture herself as a member of the jury in a second trial.  The hypothetical trial is of someone who committed a grisly murder, got the mercy of a life sentence, then slashed the throat of the father-of-four prison guard. The prospective juror is asked to assume that she is sitting on the second trial and is convinced the defendant will kill again.  (Obviously, if these approaches are employed, the hypothetical needs to be considerably more aggravated than the evidence is going to show in your case!)

There are some final touches required. If you are fortunate enough to get a response from a humane juror that will arguably qualify her to sit, it is essential that you lock down those answers.  Gently get her to repeat her commitment to them, and to acknowledge that the prosecutor is going to come back and try to talk her out of them.  If this is not done, it will take the prosecutor about one minute to undo all your hard work.

Finally, by whatever means, the process may lead you to conclude that at least a few of your jurors are likely to be humane folks who will be receptive to your case.  If so, they must be protected and empowered by another aspect of the citizen's duty approach. Call it the citizen's rights.  Carefully keeping in mind that judges frown on attempts to "hang up" the jury, there is some information that should be given to these jurors in voir dire.  It involves their commitment to the principles that (a) diversity of views is part of what makes jury verdicts representative of the will of all the community (b) all should listen to one another's positions with a view toward reaching a verdict, but (c) nobody's position is inherently correct (d) jurors should respect one another, and nobody should be subjected to harassment or derision.  It is important to gain the assent of all jurors to these principles, but even more important for the protection of the few who may save the client's life.

Dealing With Race

VOIR DIRE

The administration of the death penalty is undeniably racist.  Problem is, it didn't get that way through the direct action of folks who wear hoods and burn crosses. Determining which jurors will, consciously or not, be influenced by race is a delicate and difficult undertaking.  We have no formula for doing it successfully.  But if your client is black, and especially if the victim is not, you must try.

Your constitutional authority to make a searching inquiry is pretty thin. Turner v. Murray, 476 U.S. 28 (1986), forbids cutting off all questioning about race in an interracial capital case.  How far you can go is unclear.  How you conduct the questioning is a potentially greater problem.  There has yet to be recorded an affirmative response to "Would you be biased against my client because he is black and the victim is white?"  Assuming you are allowed to get beyond that, how to proceed?  We suggest that, again conversationally, you may learn more indirectly than by asking about the possible effect of racial matters on the trial.  You will learn a great deal by asking about where the juror grew up, what kind of neighborhood, what kind of community?  What kind of contact, if any, with those of different races?  Asking question about attitudes and experiences with interracial dating and affirmative action may also tell you a lot.  Rarely will you be able to mount a successful challenge for cause on the basis of racial bias.  You will be able to exercise peremptories more intelligently.  And you may cause a few honest prospective jurors to examine for the first time their unconscious assumptions and stereotypes.  Either of these results will be helpful.

RACE BASED PEREMPTORIES

Batson v. Kentucky, 476 U.S. 79 (1986), holds that peremptory strikes based upon race violate the Equal Protection Clause.  Unfortunately, Batson left too many questions unanswered and the many cases that have followed it have only made things worse.  The case is woefully inadequate on the question of how to determine if there has been a violation, (remember intent is an element of Equal Protection violations) and the appropriate remedy.  Instead of clearing up these matters, Batson's progeny have simply added more layers of confusion.  Batson now applies to strikes based on gender, J.E.B. v. Alabama, 511 U.S. 127 (1994), and to strikes made by defense counsel.  Georgia v. McCollum, 505 U.S. 42 (1992).  The accused does not have to be of the same race or gender as the excluded juror in order to raise a Batson objection.  Powers v. Ohio, 499 U.S. 400 (1991).  The result is this.  Batson is unlikely to keep the prosecutor from getting rid of prospective jurors because of their race.  However, Batson often offers you a great tactical opportunity to muck up the works, throw things into chaos, maybe even halt the trial and provide more time for negotiation.  What follows are some brief suggestions for bringing that about.

Let's assume the prosecutor uses peremptory strikes to get rid of three prospective jurors who are black.  The law provides that if you raise a Batson objection and make out a prima facie case, the prosecutor must articulate a race-neutral reasons for the strikes, which are then evaluated by the judge.  Jurisdictions are woefully divided over what makes a prima facie case.  The only thing clear is that it is not necessary that the prosecutor tried to strike all the black jurors in order for a claim to succeed.  The standard drill most places is simply that you make the objection and the prosecutor goes right to his innocent explanation, which is then approved by the judge.  In the unlikely event that your objection is successful, the law does not prescribe the remedy. It could be reconstituting the venire.  It could be seating the juror wrongfully struck.  All this, of course, is affected by the timing of your objections and the particular jury selection method employed in your state.

Just about any explanation by the prosecutor will do.   He didn't strike the juror because the juror was black. He did it because he lives in a high crime area, or has acquaintances or family members with criminal records, or he was inattentive, or he wore a beard, or he was too young, or too old.  Occasionally state courts will find that an explanation was merely a pretext for race.  But if the only issue in the record is evaluation of the explanation, it takes a truly stupid prosecutor not to be able to survive a Batson objection.

This does not mean at all that you should not raise Batson objections.  Quite the contrary.  In addition to the possible combination of a fair trial judge and a stupidly racist prosecutor, there are several potential tactical advantages.

First, it can at least make people uncomfortable, and somewhat improve the chances that the objection will succeed at some point, if the record also shows that the prosecutor engaged in disparate voir dire, or disparate strikes. That is, hypothetically, the reason given was that he wanted an educated jury for this case and the black juror didn't have a GED.  But he did not ask the prospective white jurors about their educational level.  Or, voir dire showed there were four GED holders but only the black one was struck.

Sometimes the admittedly race-neutral reason is incorrect.  The prosecutor can then be examined on whether he would have exercised the strike had he known the truth. That could be fun.  A wonderful example from one of our friend's cases was the prosecutor who said he struck the black juror because the juror said he was a Mason and the prosecutor didn't want any members of that mysterious order sitting on the case.  Defense counsel had the juror recalled to explain that he was a bricklayer.

As the "Masonic" example suggests, the greatest tactical opportunity is presented when the prosecutor's race-neutral explanation contains a factual allegation that can be litigated.  One of our cases provides an example, though the attorneys failed to seize the chance.  The prosecutor's stated reason for striking the black juror was that she had been a juror in an earlier case and had held out for a lesser-included verdict. How did the prosecutor know?  He represented that a paralegal from his office had been monitoring cases and interviewed jurors from the earlier trial.  What a wonderful chance to shut everything down while subpoenas were issued for the paralegal and the eleven other jurors!

Batson, well meaning as it was, will not prevent race-based peremptory strikes.  But it can shine an embarrassing light on racism and it can be used to cause difficulties even at this late stage that can improve the climate for settlement.  The trick is to make sure that more happens than simply objection-explanation-evaluation.  That, you can do.

Step 13: Trying Guilt/Innocence: Act I of the Same Play

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Even if you are new to capital defense, you probably have considerable experience in non-capital jury trials.  That experience will certainly be helpful.  The purpose of this section is to highlight some major differences that must be taken into account in a capital case.  The first is that the two-part trial is not two trials.  The guilt/innocence trial is Act I.  The penalty trial is Act II.  It's the same play.  The case for life has to begin on day one of the first phase.  What takes place in that trial will go a long way toward determining what sentence will ultimately be imposed.

The admonitions that follow are confirmed by years of trial experience and by excellent empirical research with capital jurors, once again conducted by Scott Sundby.  (See Step 11).  The outline again draws on his work, and we highly recommend that your guilt phase preparation include a thorough reading of Scott E. Sundby, The Capital Jury and Absolution: The Intersection of Trial Strategy, Remorse, and the Death Penalty, 83 Cornell L. Rev. 1557 (1998); Scott E. Sundby, A Life and Death Decision: A Jury Weighs the Death Penalty (Palgrave MacMillan 2005).

Subjective "Remorse": The Importance of Attitude and Demeanor

As we will see, the conclusion of jurors about whether the client is subjectively "sorry" for the killing will not necessarily determine his fate.  Jurors rarely believe the client is subjectively remorseful, but many who don't believe it have voted for life sentences anyway.  Much, much more important, as will also be seen, is whether the client has accepted responsibility in some manner for his conduct.  That is not the same thing as subjective remorse.

The jurors' perceptions about subjective remorse, however, are not unimportant.  The research showed that some still voted for life, even though they had a negative perception of the client as "flat and unemotional."  But those who concluded that he was "arrogant" or "cocky" almost invariably voted for death.  How are these impressions formed?

Jurors will study the client's attitude, demeanor and body language from the moment they first lay eyes upon him.  They will be particularly interested in his reaction, or lack thereof, to the prosecution's guilt phase case -- the photos, the testimony about the crime and the victim.  It is not essential that he convey remorse at this point, but he must at least be seen to be involved in the trial for his life and affected by the grisly details of the prosecutor's presentation.  (He certainly must not laugh, try to flirt with a juror, or disrupt the trial, as did some in Sundby's study.)

You cannot, of course, transform your client to present in a way that will not foreclose favorable consideration of your case for life in the next phase.  How much you are able to accomplish will depend on the hard work you have done to establish a good personal and professional relationship with him.

Anything you can do to keep him from appearing sullen and unconcerned may be as valuable to your case as your evidence.  Remember that fear of the client's future violence is a factor regardless of whether the law in your state says so.  The defense team's interaction with him must at all times communicate that he is not a threat.  He must communicate that as well. For example, the client cannot sit at the table with shoulders hunched and scowling with a look of repressed anger.

In sum, jurors are not likely to kill the client just because they don't believe he is sorry. They rarely will believe that anyway, though if they do it will be a major plus at sentencing.  But if they believe not only that he is not sorry but that he is really blowing off the proceedings that they are taking very seriously, you could lose at Act I any chance for a good review of Act II.  Do the best you can and remember that the penalty trial starts when the guilt trial starts.

Effect of Guilt Phase Defense on Sentence

The defense you conduct at Act I may have a determinative impact on the sentence. The bad news is that it may be important that the defense strategy include the client's acceptance of responsibility for his conduct.  That can put you in a very tough situation if the client steadfastly insists that he wasn't present, the prosecution has an overwhelming case, and the client wants to testify.  The good news is that the acceptance of responsibility for conduct does not have to include an admission of capital murder.  And, while jurors at the penalty trial may hold it against him that he denied even being at the crime scene, they probably will not hold it against him that their guilty verdict means they decided against his claim that the killing was not premeditated, or that it was provoked, etc.  There is apparently a lot room to accept responsibility and still contest guilt of capital murder without alienating the jury.

Of course, you are not in complete control of the available defenses.  But any trial lawyer knows that there are more options than might be initially assumed.  Especially if you have developed a good relationship with the client, you can have a lot to say about what defense is presented, and how.

By way of review, let's consider those defenses solely from the standpoint of how they very well may affect the attitude of jurors toward sentence if the client is convicted of capital murder.

The Best: You present an "admission" defense, the client makes a good witness and testifies at both guilt and penalty trial.  He accepts responsibility for non-capital homicide and expresses remorse.  (This is a good time to review Steps 1, 3 and 4.) Jurors are not likely to react negatively to defenses that admit the killing, but deny premeditation, or the statutory predicate to capital murder.  Jurors have even been understanding of failed claims of self-defense or provocation.  There is a lot of room for aggressive defense in an "admission" defense.  Defenses, whatever their strength, that deal with mental state and are consistent with your penalty trial mitigation theme deserve special mention.  For example, your client's mental retardation inhibited his ability to evaluate all his options, or made him more of a follower of co-defendants. Regardless of the likelihood of acquittal or lesser included verdict, this is the time to start laying out this story.  This is an admission defense strategy.  If the client, or others on his behalf, can testify to his regret about the killing, while contesting his guilt of capital murder, all the better.

The Next Best: You present a good "admission" defense, but it is unwise or not feasible to have the client testify.

Not Good: The defense is denial of any involvement.  Unfortunately, Sundby's research showed that acceptance of your penalty trial case may be hampered even if you present no evidence and simply contend that the state has failed to prove guilt beyond a reasonable doubt.

Really Not Good: Your defense is denial of any involvement.  The prosecution evidence is very strong. The client testifies and makes a terrible witness. Jurors are likely to hold this against him.  This can be tough.  Given police and prosecution practices these days, there is always a possibility of innocence, even if the prosecution case looks strong.  But there are many cases when the client is simply not at a point personally to come to terms with what he has done.  Others, unfortunately, think they can manipulate the system, or hope against hope to escape liability by taking the stand and telling some kind of story.  No lawyer wants to see his client destroy himself.  The best chance we have to avoid this situation is our relationship with the client.  The extra hours spent with him, and gaining the trust of those he trusts, will certainly not have been wasted.

A Word About Lingering Doubt

The role of lingering, or residual doubt is unclear.  By these terms, we mean the possible hesitancy of jurors to vote for death because of some small degree of doubt that the client is guilty, or that he is guilty of the capital offense.  Our early research in Florida suggested that this could be a significant sentencing factor.  In one case, jurors even bargained before voting to convict, assuring doubters that they would vote for life at the sentencing trial. In some Virginia cases in which we have assisted, we also have the definite impression that lingering doubt about guilt of capital murder was a factor. With all the current publicity about death row inmates being exonerated years later, jurors with any doubt at all may want to leave the door open to the possibility that they were mistaken at the guilt trial.

But, Sundby's far more extensive and systematic research does not show lingering doubt as a mitigating factor.  Worse, it shows that jurors were insulted by efforts of defense attorneys to play on this theme at the penalty trial.  Perhaps the best that can be said is to be careful.  If there is a plausible basis, from the evidence, for diplomatically suggesting to the jury that its guilty verdict may have been wrong, you may be OK.  Remember that jurors still gave some defendants who had raised self-defense and provocation the benefit of "accepting responsibility."  This may suggest that lingering doubt could be a factor when the guilty verdict simply resulted from the resolution of legitimate, contested evidentiary issues against the client.  But don't insult their intelligence or belittle the seriousness of their guilt phase deliberations.  If the lingering doubt is more conjecture than evidentiary possibility, stay away from it.

Victims and Co-Defendants

Finally, guilt/innocence trial strategy should not overlook the opportunity to begin highlighting the greater culpability of one or more co-defendants, or the misconduct of the victim.

Research and experience, ours and that of others, definitely confirms that the greater culpability of a co-defendant is a reason to impose a life sentence rather than death. When this is coupled with evidence of the co-defendant's influence over the client, so much the better.  Right or wrong, the conduct of victims at the time of the killing or their general involvement in unlawful activity can also be helpful.  The guilt/innocence trial is the place to begin showing that also.  Privately, jurors in rural Hoke County, North Carolina, more than once explained the help they gave defendant in spite of the evidence this way:  "The victim needed a good dose of killing."  Cruel perhaps, but death penalty cases are a cruel game that neither you nor the client chose.

Step 14: Get a Life Verdict at the Penalty Trial

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Discussion of your penalty trial case in this section will not be lengthy, for two reasons. First, we fully hope and expect that you will never get to this step.  Second, as every trial lawyer knows, it is investigation and preparation that counts.  If you have done those things, following the earlier steps, you are ready for the penalty trial. Consequently, discussion of your case here is mainly review.  More attention is devoted to the equally important subject of controlling the prosecutor, especially with respect to "victim impact" evidence.

Penalty Trial Checklist: Your Case

Penalty Trial Checklist: Controlling the Prosecutor

After the state has secured a conviction for capital murder, its legitimate interests have been satisfied.  You should be entitled to the stage now that the question is only life in prison or death.

One of the keys to making the penalty trial your show is to enforce the law of relevance.  We have seen too many judges, ignorant of penalty trials anyway, who just let it become a free-for-all, where both sides are permitted to put on anything they wish. Don't allow that.  If the law governs, you will be able to get in more than the prosecutor anyway. 

For a defendant to become death-eligible in Virginia the Commonwealth must prove beyond a reasonable doubt: (1) there is a probability that the defendant would commit criminal acts of violence constituting a continuing serious threat to society (“future dangerousness”) or (2) that the defendant’s conduct was outrageously or wantonly vile, horrible or inhuman, in that it involved torture, depravity of mind or aggravated battery to the victim (“vileness”). Va. Code Ann. 19.2-264.4(C). Thus if the prosecution's penalty trial evidence is not relevant to either of these aggravating factors, or is not in direct rebuttal of your mitigation evidence, it is not admissible.

Victim Impact Evidence

Nowhere are restrictions grounded in relevance more important than when dealing with Victim Impact evidence. Restraints based on the potential for prejudice are also important. Finally, your efforts to ensure that limits are imposed cannot wait until trial.

In an unfortunate, poorly reasoned decision, the U.S. Supreme Court held that the financial, emotional, physical and psychological effect on the immediate family of the murder victim is relevant to defendant's level of personal culpability.  Payne v. Tennessee, 501 U.S. 808 (1991).  In doing so, the court overruled most, but not all, of two of its prior cases that had held just the opposite.  The Court did not, however, permit "anything goes" with this evidence—due process concerns still apply to the type and amount of such evidence.

Given the wide-open approach of some judges, it is important for you to know and seek enforcement of the very real limits that exist for victim impact evidence.  In Virginia, a victim (defined in section 19.2-11.01 as a decedent’s spouse, child, parent, sibling or legal guardian) may testify at a capital sentencing hearing, subject to certain limitations. Va. Code Ann. § 19.2-264.4.A1. This “statutory” victim may (i) identify himself or herself, (ii) itemize any economic loss suffered by him or her as a result of the offense, (iii) identify the nature and extent of any physical or psychological injury suffered by him or her as a result of the offense, (iv) detail any change in his or her personal welfare, lifestyle or familial relationships as a result of the offense, (v) identify any request for psychological or medical services initiated by him or her or his or her family as a result of the offense, and (vi) provide such other information as the court may require related to the impact of the offense upon the victim. Va. Code Ann. § 19.2-299.1.

Note that none of these categories address the past criminal activity of the defendant, the defendant’s conduct during the commission of the offense, the circumstances of the offense or the defendant’s mental state at the time of the offense. Therefore, they have absolutely no relevance to the future dangerousness and vileness aggravators. Perplexingly, Virginia courts have upheld the statute against these challenges, purporting to follow Payne’s allowance of victim impact evidence. Remember, however, that Payne did not hold that victim impact evidence is always admissible; it merely held that if a state elects to allow victim impact evidence, the 8th Amendment erects no per se bar.  As a constitutional question, that is a long way from saying that all kinds of "impact" evidence from all kinds of people is permissible.

Because Payne and Virginia deems victim impact relevant in some contexts, capital defense attorneys must seek to minimize the impact of this evidence, considering relevance, prejudice, and procedure.

RELEVANCE

In part because of what remains of the two overruled cases, and many earlier cases, a reasonable effort can be made to confine Payne to its facts.  Payne, and the cases before and after, affirm that capital sentencing law is to focus on a heightened level of personal culpability beyond that inherent in every murder.  Evidence not relevant to personal culpability remains inadmissible.  The Payne court made the tenuous connection by finding that, on the evidence, Payne had to know that he was taking the life of a human being whose life was in turn closely connected to the lives of others.  Keep that in mind.

In the case, a mother and three year old daughter were fatally stabbed in the presence of the mother's two-year-old son, who also suffered injury in the attack.  The boy's grandmother was permitted to testify that he missed his mother and sister.  The prosecutor also argued that he would not have his mother to kiss him good night or sing a lullaby.  If we are as generous as possible with the reasoning of the Payne court, we can conclude that Payne could fairly be charged with knowing that, beyond simply killing, he was destroying a family network.  This very rationale suggests limitations, many of which have been recognized by state courts.  Here are some of the limitations you need to enforce:

PREJUDICE

The objection that the prejudicial effect of relevant evidence outweighs its probative value is a notoriously weak one, at trial and on appeal.  We all know that.  But the claim has slightly more currency with respect to victim impact evidence.  The Payne court expressly recognized that victim impact evidence could be so unduly prejudicial as to render the trial fundamentally unfair.

Several state courts have also recognized that a parade of weeping family members is a greater threat to fairness than even a fistful of gory crime scene color photos.  And, as sometimes happens with photos, courts have at least limited the number of family member witnesses.  Defense counsel should strenuously object to the introduction of victim impact evidence in the first place, but if such objections are denied counsel must at least seek to limit the scope and amount of such evidence.

Finally, the prosecution may seek to introduce evidence from non-statutorily defined “victims.” In Beck v. Commonwealth, 253 Va. 373 (1997), the Supreme Court of Virginia said the relevant statute doesn’t limit victim impact evidence to only those persons defined as victims: “[T] he circumstances of the individual case will dictate what evidence will be necessary and relevant.” Id. at 384.

Still, Beck does not authorize or require the court to automatically admit non-statutory victim impact evidence. The fact that Virginia limits its definition of “victim” to immediate family members means that, at the very least, Virginia recognizes the potential prejudicial effect of such evidence. Defense counsel should seek to exclude such evidence as highly prejudicial. VC3 has an example of such a motion, which is tailored to the facts of a specific case.

Combined with the fact that victim impact evidence is just barely relevant to the capital sentencing decision, these factors may indicate somewhat better luck with the old "prejudice outweighs probative value" objection.

PROCEDURE

Given the potentially devastating effect of victim impact evidence, you cannot wait until the penalty trial to deal with it.  Imagine how well you can expect to fare with your objections if family members have already come to the courthouse to testify.  Consider the effect on the jury when you interrupt the testimony of a grieving husband with your perfectly valid objections. There are times when waiting until trial to make objections is tactically sound because it impairs the prosecution's ability to respond effectively. This is not one of those times.

It is in fact fairer to the victim's family as well as the client that the restrictions on the content and volume of victim impact evidence be settled by pre-trial motions in limine.  Through investigation and full use of whatever discovery is permitted, you will know what limitations should apply.  And, hopefully, the evidence will be softened in any event because of your contacts with the victim's family.  (See Step 6).

You should also draft proposed jury instructions on the limits of victim impact evidence.  The U.S. Supreme Court has said often that the life/death sentencing decision must be, and appear to be, based upon reason and not emotion.  That is definitely not how things work in the real world, but it is a solid legal foundation for getting an instruction.  Such an instruction might include language like this, approved by the Tennessee Supreme Court:

"You may consider this evidence in determining an appropriate punishment.  However, your consideration must be limited to a rational inquiry into the culpability of the defendant, not an emotional response to the evidence.  Victim impact evidence is not the same as an aggravating circumstance.  Proof of an adverse impact on the victim's family is not proof of an aggravating circumstance."

Victim impact evidence can be the landmine of penalty trials.  Unless defused, it can explode in the face of your well prepared and well presented case for life.  Properly limiting it, in accordance with law, can leave the path open to you to seize this final chance at life for the client.

A Final Word

If the case has reached the penalty trial, you are in real trouble.  If your evidence does not explain the crime in human terms understandable to jurors, the sentence will be death.  On the other hand, jurors come back with life verdicts every day.  The capital defense community has made a significant effort to share information about this critical last chance stage of the proceedings.  Help is available.

Step 15: Make an Effective Closing/Control the Prosecutor

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You do not need to be reminded that you are in trouble if the case comes to this final step.  On the other hand, if you have tried diligently to apply the earlier steps, your closing argument will have that solid foundation in evidence essential to a chance for it to be effective.  You will have been putting reasons to vote for life into the case since day one.  The closing for one now-executed prisoner took up only 22 lines the trial transcript.  The attorney for another who met the same end spoke for three hours.  The common element in the two cases was the complete absence of any penalty trial evidence.  The day is long past when rhetoric and eloquence could turn a jury around.

You, however, having commanded center stage during the penalty trial, which is your right, and having put on your life evidence, now have the following work left to do at the argument stage:

Explaining the Client and the Crime

The prosecutor's closing argument for death is likely to be simple and predictable: "He's guilty.  He's depraved and inhuman.  (Would you like to see the photos again?) Anything less than death is just a slap on the wrist and dishonors the victim.  He must be killed so he can't kill again."

That's pretty much it, and it helps define your work.  Notice that the prosecutor's argument, and his evidence has a single limited time frame:  the time the client did the worst thing he has ever done in his life.  Your job is to shift that focus, making jurors understand the purpose of all those witnesses you put on, who were not at the crime scene.  The first basic truth jurors must understand and accept is one that is really irrefutable:  Nobody springs full- blown on to the earth at the moment they commit a robbery-murder.  Like all of us, they are affected by the course of their lives to that point.

Jurors can and will understand this if you help them in closing.  Suppose, for example, your major mitigation theme has been no-fault impairments that are causally connected to the crime sufficiently to explain, but not excuse it.  In closing, you can be an additional (or maybe the only) expert witness.  You can explain what being given heroin regularly by one's parents at age 8 has to do with committing a homicide at age 19.

Playing that expert role in closing, and broadening the jury's perspective, it is important not to appear to be blaming all the client's woes on others as some sort of excuse.  "I'm depraved because I'm deprived" won't work.  But it is possible to convey the idea that understanding what the client did means recognizing that there were others in his life whose failures contributed in some measure to the ultimate tragedy.  Yet, only the client is to be held accountable for his actions and punished.  The broader influences on his life are no reason to excuse his conduct and that will not happen.  But that fabric of life experience is a reason to punish him severely without killing him.

As you seek to broaden the focus of attention, it can be very helpful to illustrate your argument with exhibits from the client's life.  Photos and artifacts from his childhood can be particularly useful in communicating the fact that we are dealing with a whole human being with a whole life.

In addition to being careful not to appear to blame everything on others, there are some other "don'ts."  Insulting the jury by whining about the guilty verdict is certainly one.  A safer approach is:  "We are disappointed by your verdict, but we accept it, and the serious deliberation you put into reaching it."  That respectful concession can lead to this segue:  "We know that you will now give the same serious consideration to an entirely different kind of verdict."

You know the other "don'ts":

Empower the Life-Leaning Juror(s)

Again looking back at what is almost certainly going to be the thrust of the prosecutor's argument helps to see what is needed to counter.  Research indicates that jurors hearing the prosecutor are likely to be concerned about following the law, protecting society, punishing the defendant, and doing justice.  These concerns present you with opportunities.

Without lapsing into legalese, you might want to talk a little about following the law. That is because the law is counter to the prosecutor's simplistic formula, and also because life-leaning jurors need to be assured that voting for life is clearly contemplated by law.  If the law did not envision that serving justice means sentencing some murderers to life in prison instead of death, there would be no need for the proceeding everyone has just been through.  Likewise, even though the judge speaks about "aggravating" and "mitigating" factors, the law requires much more than just adding them up and mechanically determining which are the heaviest.  If the law did not require human beings making a decision that serves justice, a computer could do the adding and weighing.

Addressing juror concerns about protecting society and punishing defendant means your argument must also convey the reality of life in prison without parole.  Life in prison is the end of any semblance of normal life. It is punishment.  Severe, day after day punishment.  While suffering that endless punishment, however, this individual will fashion a life that has value.  It will be a life that is useful to his fellow prisoners, to prison staff, and most of all useful to his family members, who are innocent of any crime.  And of course, in that abnormal, restricted setting, he will be no danger to anyone.  This important point has been introduced this way:  "Members of the jury, you decided by your verdict in the last trial that ---- will die in prison. The question left for you to decide here is whether he will die in that prison at a time appointed by God, or at a time appointed by the State of -----."

Finally, not only must jurors understand that the law never requires a vote for death, those who may be leaning to life should be isolated and insulated from pressure by other jurors.  Your argument, then, might well mention the following:

Control the Prosecutor

The penalty trial arguments of prosecutors are often outrageous and unethical.  In one case, the prosecutor opined that the accused should not be let out of his cell unless he was on a leash with a guard at the other end.  He also expressed the wish that he could see the accused with his face blown away by a shotgun blast.  (And this was a case where the evidence of guilt was far from overwhelming.)  Unfortunately, the appellate reports dealing with such arguments are filled with ringing judicial condemnations of the prosecutor's conduct, followed by affirmation of death sentences.  Because of this, and because of the need for the defense to be the focus of a penalty trial, you must deal decisively with improper argument.

Interrupting the prosecutor's argument with objection does not carry the same risk of negative juror reaction as objections to witness testimony.  Interrupting may be not only tactically sound, but they are absolutely crucial in order to preserve the errors for review.  Do not hesitate to interrupt and object, and do not hesitate to employ a "speaking" objection.

EXAMPLE:  (Prosecutor has made comparison of defendant's life and opportunities to that of victim, who now has none.)  "Objection.  It is fundamentally unfair to compare the life of (client) to one he can do nothing to bring back.  He would if he could, and the prosecutor knows that."

You are, of course, speaking to the jurors, not the judge.  Your objection is not an attempt to hide something from them.  Rather it is a charge that your adversary is not playing fair.  They will understand that.

There are numerous grounds in law and ethics for objections to anything you believe to be unfair.  As you know, the courts have held that a prosecutor's argument can be so outrageous as to deprive a defendant of the 14th Amendment right to a fundamentally fair trial.  In one case, an otherwise bad one for our side, the U.S. Supreme Court suggested that there were several types of non-statutory aggravating matters that prosecutors are forbidden to make out by evidence or argument.  You should certainly interrupt and object if any of these appear:

In addition to arguments that may violate due process, the prosecutor may make arguments that are unethical. It is also proper to object in that event.  Sources for identifying such arguments may be found in your state's version of the ABA Model Rules of Professional Conduct, and the ABA Standards for Criminal Justice.  The Rules are binding and violation can subject an attorney to disciplinary action.  The Standards are, for the most part, aspirational, though they have been adopted as binding in a few states.  Arguments violating either the Rules or the Standards provide legitimate grounds to interrupt and object.

EXAMPLES

Rule 3.4(e) forbids (1) alluding to any matter the lawyer does not reasonably believe is relevant or supported by admissible evidence; (2) asserting personal knowledge of facts in issue;  (3) stating a personal opinion as to the justness of a cause, credibility of a witness, or guilt or innocence of the accused.

Standard 3-5.8 forbids in argument (1) intentionally misstating evidence or misleading jury as to inferences it may draw;  (2) stating personal belief or opinion of the truth or falsity of any testimony or evidence;  (3) making arguments calculated to appeal to the prejudices of the jury;  (4) making argument designed to divert the jury from its duty.

Finally, it is particularly appropriate and necessary to make objection to inflammatory or otherwise improper argument both broadly and narrowly. That is, the record should not only show that you objected when the prosecutor called the jurors "soldiers of God," whose duty it was to kill the client, but also that you objected when he was finished that the argument, viewed in its entirety, violated due process.

FINAL REVIEW

In spite of the situation, your closing argument can and should be positive in many respects.  Speak affirmatively about why a life sentence is appropriate in this case, to this individual.  This includes explaining the theme your evidence has followed, and relating it to the offense.

Emphasize the individual rights and responsibilities of each juror to make his or her own decision and to have that decision respected.

Most Important!

You cannot sell what you would not buy.  You must have absolutely satisfied yourself that your client must not be sentenced to death.  You must convey to the jury that it is personally important to you that he live.  You cannot be, or appear to be, at all detached from this life and death struggle.

It is our hope and expectation that you will never reach Step 15.  We conclude as we began. If you have a capital case, GET HELP BEFORE TRIAL.  It is available, and it can save your client's life. Please browse this site to find various motions, jury instructions and other practical resources that will help you with trial.  In addition, VC3 is available to assist you in preparing for your trial.