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Emotion and Capital Sentencing

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AP reports from Connecticut:

HARTFORD, Conn. -- A Connecticut judge has decided that a jury was fair in deciding that Steven Hayes should be executed for a home invasion that left a woman and her two daughters dead.
Lawyers for Hayes had argued that the jury was swayed by emotion after hearing and seeing gruesome testimony. Jurors condemned Hayes to death on Nov. 8.

New Haven Superior Court Judge Jon Blue on Friday denied defense lawyers' motion seeking a new trial, new penalty phase hearing or a sentence of life in prison without the possibility of parole.

The judge says the jury wasn't "driven by passion and prejudice." Public defender Thomas Ullmann says he believes the same issues will come up on appeal.

A capital sentencing jury certainly should not be driven by prejudice.  Is it necessary that the jury's deliberations be devoid of passion?  Is it possible?  Is it desirable?
The jury's function in the penalty phase of a capital case is fundamentally different from its function in the guilt trial.  The guilt phase jury is supposed to determine facts.  Sometimes, they are hard, objective facts, such as "whodunit?"  Sometimes the facts are more subjective, such as whether the defendant acted with reckless disregard of human life, but the questions are still factual in nature.

In the penalty phase, the question is different.  Is this murderer one of the very worst who should be sentenced to death?  Many of the factors the jury must legitimately consider necessarily involve appeals to emotion.  There is the horror the victims felt.  There is the continuing pain of the survivors.  The defense, for better or worse, is entitled to invoke the sad story of the defendant's past.  Should the jurors consider these factors without passion?

No.  They can't, and they shouldn't.  The "gruesome testimony" necessarily invokes an emotional reaction.  That natural, human reaction to the testimony is a proper part of the process.  A standard instruction not to consider "sympathy" was once declared unconstitutional by the California Supreme Court.  The U.S. Supreme Court reversed only because, in context, it thought jurors would understand that the instruction was as "an admonition to ignore emotional responses that are not rooted in the aggravating and mitigating evidence introduced during the penalty phase."  California v. Brown, 479 U.S. 538, 542 (1987).  Sympathy based on the aggravating and mitigating evidence is not only proper but necessary, and so is passion.

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