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Appealing to the Sympathies of Juries

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The Supreme Court of Florida has issued its opinion in the case of Nowell v. State, reversing and remanding the death penalty sentence of Willie Nowell. The court notes two reasons for its decision: (1) the peremptory exclusion of a juror was unlawful because the prosecutor's stated reasons chiefly relied on a feeling of "dislike" for the juror (who was of Hispanic dissent) and; (2) the prosecutor stated during closing arguments:

"Mercy. State asks that you recommend mercy if mercy is warranted. And mercy wasn't given in this case, not by Mr. Nowell, not by Mr. Bellamy. There was no mercy there, none whatsoever."  

The Court concludes:

"We held that this line of argument is blatantly impermissible under Rhodes v. State, 547 So.2d 1201, 1206(Fla.1989), and Richardson v. State, 604 So.2d 1107, 1109 (Fla.1992), which condemned these type of arguments because they are an unnecessary appeal to the sympathies of the jurors."

The issue of emotions and jury decision making is a hot topic not only in the courts but in much of the applied psychological science involving legal systems.  The customary idea is that emotions are bad when they involve jurors and efforts should be undertaken to minimize or exclude the influence of emotions in legal decisions.  Thus, it is hardly surprising that much scholarship is devoted to the propensity of crime scene photos and victim impact statements to invoke emotions among juries with the conclusion that such evidence should be excluded as overly prejudicial.

Yet what often goes unnoticed is how almost all mitigation claims rely completely on emotional decision making by juries.   Whether it is a defendant's unfortunate childhood or lifelong addiction to drugs, mitigation bears the imprimatur that emotions matter and are essential to an equitable criminal justice system.  For better or worse, they are what binds humanity to its legal system of impersonal rules and procedures and gives authority for that system to impose its power over the people. 

Whether a statement is an "unnecessary appeal" perhaps misses the point.  Divorcing juries from emotions is a sword that cuts both ways and cuts deeply: justice and mitigation seem to be tightly wrapped in the emotional judgments of the people writ large.

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Along with an effective defense attorney, it appears that capital defendants are also constitutionally entitled to an ineffective prosecutor.

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