Saturday, March 17, 2007

Why Is Defense Counsel Not Allowed to Ask Jurors to Walk in the Defendant's Shoes?!?

In reading an article about the capital murder conviction and recommendation by a jury panel that Thomas A. Porter be executed, Howling Latina has to ask one question: Why it is it an absolute no-no to ask a jury to see things from the point of view of the convicted murderer during the penalty phase of a capital murder trial but perfectly okay for the same jury to hear victim impact statements.

In a March 14 article, the Virginian-Pilot reports that Capital Defender Joseph A. Migliozzi Jr., told jurors in his closing argument that "to understand Porter, they should 'step in this person's shoes.'"

Circuit Judge Chuck Griffith went ballistic.
"That is an improper argument under Virginia law," Griffith said. "You are never to be asked to step inside somebody else's shoes. Never."
Hmmm, so the jury can witness tearful gut-wrenching testimony from the victim's family and friends but defense can't even ask the jury to empathize just a tad and try to see things from the vantage of the convicted.

Yep, sounds fair to Howling Latina...NOT!


And to think my sweet daughter is an attorney:(
This provision exists in order to prevent jury nullification and to keep the jury focused on the issue of whether the elements of an offense have been met. It does make a closing argument more difficult, but there are ways around it. It's not clear whether this part of the argument came prior to the conviction or during the sentencing phase. If prior to conviction the way around the problem is to describe, based on the evidence adduced, what might have been going through the defendant's head at the time. If during the sentencing phase defense counsel is free to elicit all sorts of testimony about the defendant's horrible childhood, his addictions, his mental health issues, whatever, which is another way of asking the jury to put themselves in his shoes.

You are right about the victim impact possibly veering over into the area of unfairness, but something had to be done to allow the victims a voice in criminal prosecutions. The focus used to be so much on the elements required for conviction, and then upon the mitigating factors mentioned above, that the victims were voiceless.

It's been my experience that victims often waive their right to a victim impact statement, or they prepare a letter to be read or which they will read to the jury. Most are rather reserved and really don't go very far overboard. Except in cases as egregious as Porter's, where I've seen victim impact cases go overboard there's often a backlash effect of the victim as drama queen.

After sitting through hours of Porter's trial I came to the conclusion that he was a dead duck from the moment he walked in the courtroom. The entire prosecution was presented in as low-key a fashion as possible, but the evidence was so overhwelmng, and his behavior was so depraved and inexcusable, that the death penalty seemed inevitable to me.
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