The crying game.

The law, lawyers, and the court.
Dec. 2 2004 5:12 PM

The Crying Game

Should we decide capital punishment with our hearts or our heads?

Scott Peterson
Get out your handkerchiefs?

Two days into the penalty phase of the Scott Peterson trial, it's clear that Kleenex must be flying off the Safeway shelves in Redwood City, Calif. Jurors sobbed openly as Laci Peterson's mother testified on the first day of the guilt phase. Peterson himself cried when his dad testified yesterday. And jurors who made it through hours of the gruesome testimony offered at the guilt phase have morphed into puddles when faced with photos of the dead victim and emotional narratives about what a great mother she would have been.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate

Peterson was convicted last month of murdering his pregnant wife, Laci, and his unborn son, Conner. He now faces the prospect of either life in prison or capital punishment. And on Tuesday, as the penalty phase of the trial began, it became clear that "penalty phase" is simply a term of art for "blatant emotional manipulation," as both sides did everything in their power to persuade the jury to vote only with their hearts.

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We have become so accustomed to bifurcated capital trials in America—trials at which the guilt phase is separate from the sentencing phase—that we forget how truly bizarre this system can be. We end up with a "head" trial—a dispassionate hearing on what happened, in which evidence is sometimes cruelly limited to the cold, hard facts. That proceeding is closely followed by a "heart" trial—a mini hearing full of hearsay and legally irrelevant detail: The defendant was abused as a baby; the victim was a wonderful wife and mother. Witnesses are, in short, encouraged to take the stand and emote—describing how desperately they miss the victim, or how tragic the life circumstances of the defendant really were. And, instead of deciding guilt beyond a reasonable doubt, jurors are asked to engage in a subjective balancing test—weighing a list of aggravating factors (was the murder particularly heinous; was it done for financial gain; does the defendant have a violent criminal history?) against a list of mitigating ones (was the defendant abused as a child; was he on drugs or otherwise impaired in his judgment?).

Whether Scott Peterson lives or dies may well come down to whether the jury believes Laci's family is ultimately more tragic than his.

The notion that there is a place in the chilly, linear life of the law for this sort of sentimentality—the unrestrained id of emotion untethered from logic—is beyond strange. The idea that in order to decide whether a criminal deserves the "ultimate punishment" a jury must abandon reason and clarity for emotion and intuition inverts everything the law otherwise represents. When else do we contend, as a society, that people exercise fantastic judgment at that moment when they are sobbing and gasping for breath?

Of the 38 states that permit capital punishment, all allow for bifurcated trials in capital cases. The Supreme Court has made clear that bifurcated proceedings are not constitutionally mandated, but in a watershed set of decisions in 1976—collectively known as Gregg v. Georgia—the court held that bifurcation is one of several mechanisms that states might employ to limit the arbitrariness of capital sentencing. The high court in Gregg, quoting the Model Penal Code, laid out the problem in this way:

[If a unitary proceeding is used], the determination of the punishment must be based on less than all the evidence that has a bearing on that issue, such, for example, as a previous criminal record of the accused, or evidence must be admitted on the ground that it is relevant to sentence, though it would be excluded as irrelevant or prejudicial with respect to guilt or innocence alone.

In other words, bifurcated proceedings ensure that at the guilt phase, jurors consider only the facts relevant to this particular crime. All other extraneous (and possibly very damaging) facts are kept out so as not to prejudice the jury. But when the penalty phase opens, the court assumes that jurors need to know all the facts—both good and bad—since they are not just deciding about a particular case anymore; they are determining whether someone's life will be terminated. At the first phase, jurors make a backward-looking decision as to what happened; at the second phase, they make a forward-looking judgment as to whether the defendant's life might have any value. And that latter judgment evidently requires some quantum of emotional information that cannot be processed rationally.

The other, related, justification for a bifurcated capital proceeding is that it allows the defendant to preserve his Fifth Amendment right not to testify. He can remain silent during the guilt phase and not incriminate himself, but he is allowed to testify during the penalty phase—at which time he may elect to cry like a baby and beg for the jury's mercy.

This yin/yang trial structure highlights the schizophrenia at work in the ways we think about executions. We can't decide, as a philosophical matter, whether capital punishment is a logical, dispassionate punishment or a moralistic, subjective one. And nowhere is this duality more obvious than in the Supreme Court cases themselves. On the one hand, the court has said, in cases such as Gardner v. Florida, that "[i]t is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than emotion." And, yet, the court believes that "because of the 'severity and irrevocability' " of the death penalty, it is "qualitatively different from any other punishment"( Spaziano v. Florida) and that it is "desirable for the jury to have as much information as possible when it makes the sentencing decision" (Gregg).

So, which is it? Are death penalty cases supposed to be decided by reasonable jurors applying fixed community standards, or by jurors unhinged by a barrage of emotional pleas? At the penalty phase in the Timothy McVeigh trial, 38 "victim witnesses" described the carnage at Oklahoma City to the jury. A policeman described a small child's body in a teddy-bear shirt whose "face was gone." Others described the sight of tiny pink dresses and baby socks. Jurors were devastated and horrified.

Part of the shift, in which the penalty phase no longer represents a contest between the defendant and the state but, rather, becomes a contest between the defendant and the victims' survivors, is a result of years of advocacy by the victims-rights movement. Whereas victim-impact statements were once prohibited at trial, for example, the Supreme Court now holds them to be constitutionally permissible. Whereas the victim's family used to be almost incidental at a capital trial, they now play a central role, most notably at the penalty phase.

This shift makes perfect sense if you accept that the only real justification for capital punishment is vengeance. Executions are far too rare and too capricious to have a real deterrent effect on criminals. And the case for capital punishment as a cure for recidivism is equally supported by the prospect of life imprisonment. The real reason for capital punishment, then, is vengeance—an eye for an eye—both societal and for the victims. And whether one accepts this as a valid rationale for executing killers or not, the fact is that vengeance is an emotional response. For suffering to be matched by suffering, jurors must weigh not facts, but human pain.

Human pain is not quantifiable. And understanding the pain of another turns largely on your own experience, your own sensitivities, and the victim's eloquence—not on any accepted extrinsic yardstick. By the same token, whether a defendant deserves to live or die turns largely on what lies deep in his heart and whether there is such thing as redemption; questions that jurors may not be suited to decide with any degree of certainty. These are entirely heart, not mind, questions, so it's no surprise that the penalty phase has more to do with appeals to tears as opposed to logic.

Most of us could probably agree that we have made some of our worst personal decisions with a tissue in one hand and a glass of merlot in the other. Why, then, do we allow jurors to be inflamed by prosecutors and manipulated by defense lawyers just prior to asking them to make one of the most crucial decisions they will ever make?

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