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The Crying Contest


Terry Moran has this post on his blog at ABC, titled "How the death penalty really works." His main gripe is that the death penalty has become too emotional and insufficiently rational.

Instead, we have a crying contest, a competition to see which side can break the jurors' hearts harder--either the prosecution with its portrayal of Mari Anne Pope as a devout Christian killed with bloodthirsty fury, or the defense and its portrayal of Slagle as an abused, alcoholic teenager. Why should those issues--and the emotions they trigger--matter?

There is no doubt whatever where the blame for this lies. It is squarely on the doorstep of the Supreme Court and its disastrous 1978 decision in Lockett v. Ohio. That decision created out of blue sky a constitutional mandate to allow everything including the kitchen sink that the defendant wished to throw into the penalty phase. Neither the absence of any basis for such a mandate in the text or history of the Constitution nor the fact that the Court was contradicting decisions just two years earlier, that had approved systems considering less than everything, seemed to matter.

Victim impact statements were banned for a while, but the injustice of allowing one side to drag in all the emotion while banning the other side was so gross that the Court backed off in Payne v. Tennessee.

The solution to the problem Moran sees is quite simple. Overrule Lockett and then provide by statute that the penalty phase will be limited to (1) the circumstances of the present crime; and (2) the defendant's criminal record or lack of one. No more abuse excuse. No more crying relatives. No more expensive experts, except in cases where actual insanity is genuinely at issue. Such a system would be simpler and cheaper. It would also be fairer, since the effectiveness of the crying game depends more on the skill of the defense team presenting it than it does on the actual probative value of the evidence.


In his dismissiveness of the current state of penalty phase argument, Moran callously demeans the suffering wrought by murderers. Having known two murder victims (and two murderers, btw) in my life, I can only say that by definition a penalty phase trial must be emotional because murder is emotional. One can only imagine the heartbreak one must feel at the loss of a brother, sister, husband, father, mother, spouse, let alone a child, to a killer, especially since many murders are not quick. The loss matters, so the emotions matter. And for Moran to belittle victim impact evidence as part of a "crying contest" is obscene.

Perhaps we should ban statements about the victim, as a matter of policy, but it seems to me that people left in a murderer's wake deserve a say.

Slagle was a neighborhood burglar who was too occupied with drinking, smoking dope and stealing to bother with getting or keeping a job. He was never, contrary to Moran's claim, "abused", either physically or sexually. Although Slagle is one quarter native American, that fact was not pushed until long after his conviction and death sentence. Slagle lived next door to the victim, who although was creeped out by Slagle, treated him with nothing but courtesy.

The victim was as innocent and without fault as could be possible. She was devoutly religious and well known at her church. Her home was filled with religious symbols that reflected her real beliefs.

As Slagle was stabbing her with the sewing scissors she kept on the nightstand, an eight year old neighbor boy she was babysitting that night heard her plead with Slagle to say prayers with her. Slagle refused and told her to shut up about her prayers, as was recounted by the neighbor boy from the witness stand. When the neighbor boy was in his early 20's, he ended his own life. The traumautic vision of Slagle murdering his babysitter may not have caused the suicide, but it was Slagle who burdened the boy with that vision.

Slagle's trial defense was that he was too drunk to form an intent to kill, and Slagle offered that up for the jury's consideration through his own testimony during the defense case in chief. The lead trial prosecutor, a skilled courtroom veteran, cross examined Slagle about his lucid refusal to follow along with the victim's prayers, to illustrate to the jury that Slagle's claim he was too drunk was baloney. The guilt phase closing argument was done by the young hotshot second chair prosecutor, who captivated the courtroom by intoning the numbers one through seventeen, one for each of the seventeen stab wounds suffered by the victim before she bled to death, to again illustrate that Slagle could think and act with criminal culpability.

Of 15 fair minded jurists (10 state, 5 federal) who have expressed an opinion about Slagle's claim that his conviction and death sentence is due to exhortation by the prosecutors, as opposed to the facts of the crime and lack of viable mitigation, two federal jurists would side with Slagle. As Slagle proceeds closer to execution, you can bet he will continue to shift the focus away from him (except relative to his native American heritage) and onto the trial prosecutors.

Moran picked the wrong case to illustrate his point that a capital trial is nothing more than a crying contest between a hapless victim and a pitiful perpetrator. In this case, all the tears were on Mari Anne's side.

One part of middleamerican's post, the description of the prosecutor's evisceration of Slagle's incapacity argument reminds me of the Penry case. I am sure that the various judges who have dealt with that case wonder how Texas juries can keep sending this presumed retarded guy to the row. Hmmm. Could it have to do with the evidence presented at trial (coupled with skillful presentation) being at variance with the "Penry is retarded" meme we hear. Scalia's remark in his Kyles v. Whitley dissent seems relevant to some of these cases: "Only appellate judges could swallow such a tale." Could it be that juries have more common sense than many judges? Oh, perish the thought.

I'm sure that Moran would dismiss the suffering of this little girl, if part of a penalty phase hearing, as party of a "crying contest".


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