Themes and Theories
Themes for Persuasion
"Just Do It"
Tennessee Association of
Criminal Defense Lawyers
Distilled and Undiluted
Richard S. Jaffe
Jaffe, Strickland & Drennan, P.C.
2320 Arlington Avenue
Birmingham, Alabama 35205
Although the following is geared toward themes and theories in Death Penalty cases, the principles are just as applicable to any case. The theme is the heart of the case, the central focus around which every other point of the case revolves. And storytelling is the way that the themes are communicated to the jury. In any trail- whether it be shoplifting or Capital murder, the jury will choose a story- yours, the prosecutors, or they will come up with their own. I want the jury to choose my story, the story that will cause them, motivate them, indeed compel them, to vote not guilty. The winning story contains the willing theme, and the story and the teller that the jury most believes and trusts will ultimately always win. And I need jurors to trust me, and invest in my client's fate. In other words, to care about my client, and what happens to her. How do I motivate jurors to reject the pervasive presumption of guilt that permeates their minds? And the belief system each brought into the courtroom- where there is smoke there is fire?
Contrary to our legal burden of proof, they expect us to prove the prosecution has it wrong. How do I motivate jurors to embrace our client, and accept our version of the events? How do I get them to believe our story of not guilty? How do I get them to trust me over the police, the prosecutor, the victim, the state witnesses and even sometimes the judge? This is our challenge as defense lawyers- to ensure that whenever the evidence is in- during our summation- they chose to believe our story over all others?
First of all we must bring them a story - a believable story. Too many lawyers concentrate on the objective facts without looking deeper and identifying those underlining motifs and themes that in the end determine the ultimate outcome of any case.
For example, In the case of United States of America vs. Terry Nichols, the jury had to choose between two distinct stories. The prosecution story said that Terry Nichols conspired with Timothy McVeigh, intending to kill 168 men, women and children in the Alfred P. Murray Federal Courthouse located in Oklahoma City, Oklahoma. The defense told a different story; Terry Nichols was building a life, not a bomb and never intended destruction and death. Two different stories- one leads to the death penalty. One leads to a life verdict. The jurors chose life.
In the O. J. Simpson trial, the jurors believed it did not fit, so they acquitted. The image of a glove powerfully underscored the themes of the case.
Studies have shown that each juror will find a story within each case, whether the lawyers give them one or not. Further they will figure out "the story" early on in the case. Once a juror constructs a story it becomes a framework or prism in which they fit the rest of the evidence. In other words, the jurors will reject evidence that conflicts with their constructed view of the case, and accept or fit in evidence otherwise consistent with it. This "world view" is no different than the way that most of us think anyway. For example: A person in favor of the war in Iraq, listening to competing views, will accept or reject information consistent with their preconception. A person with strong views on the death penalty or abortion or religion will listen to a debate on these subjects with almost no likelihood of changing their mind, no matter how persuasive or logical any particular speaker might present on the subject. One's investment in these sensitive areas is an emotional one. The heart almost always rules the head.
As lawyers we must understand that persuasion in the courtroom, or anywhere else for that matter, begins and ends with the power of our story.
Like any great story, its power resides in its transmission of specific themes. Any story can be told many different ways. It is up to us to make it resonate and cause it to motivate jurors to act in a particular manner, i.e. by voting not guilty. If the juror is motivated enough, our hope is that she will persuade others to vote our way as well. Isn't that exactly what happens in the jury room everyday, and at board meetings, committee meetings, and business meetings? The jurors either become our allies or our antagonists. We want to conspire with them to persuade others as we have persuaded them.
People will indeed act on their feelings, even if their heads tell them not to. Heart believers will fight harder than head believers. Our goal then is to make the jurors care.
In a Death Penalty case, the jury has just returned a verdict of guilt. You can feel the electricity searing the atmosphere of the courtroom. And you can taste the hunger of death. The jury has rejected any argument and plea you made in the first phase of the trial. The stage is set, and now it is your turn to speak, ever mindful of the boiling anger directed not only at you, but more importantly, at your client. You know many of the arguments the prosecution will make as to why the jury should not hesitate to kill your client. It's time to change the dynamics of the courtroom; otherwise, your client is dead.
Before you begin this daunting and awesome task, you are ever mindful that the members of this jury were predisposed to kill even before the jury selection process, and in fact, as a direct result of the process itself; the prosecution successfully challenged any prospective juror who expressed a conscientious belief opposing the death penalty, and removed by preemptory strike those who expressed sincere reservations or hesitation to impose death.
You are also mindful of those ways in which the prosecutor has attempted to pave the road toward death by doing anything possible to dehumanize your client. The prosecutor has also attempted to take the individuality of your client away, and has taken advantage of any differences between the jurors and your client. The more distance that the prosecutor can place between the jurors and your client, the easier it will be for them to vote for death.
The prosecutor has also attempted to downplay the enormity of killing another human being by utilizing concepts such as "capital punishment" and "execution." And the prosecutor has attempted to create a cocoon for the juror so that an individual juror can hide behind a "group decision" so as to minimize any personal responsibility that the juror has in voting for death. Id.
An effective prosecutor will call on the members of the jury to support the efforts of law enforcement, protect society by following the demands of authority. The prosecutor will ask the jury to buy into society's thirst for revenge by seizing upon the juror's horror and outrage resulting from the criminal act of your client. Id.
When it is our turn then to address the jury, our only hope rests in our ability to shatter the cold shell of "defendant" and bring to life a living, breathing human being who can be sufficiently punished by a life sentence. We can only do that by effectively communicating the story of our client's life in a compassionate, sensitive and compelling manner. We must find those themes or motifs in our client's life and make them meaningful to the individual jurors so they will choose life. Only if the jurors understand the traumas, the losses and the disadvantages that influenced and molded our client's life will they be persuaded that the client will be sufficiently punished by a sentence of life imprisonment instead of death. And before we can tell that story effectively to the jury, we must ourselves be deeply influenced and moved by the themes of our client's life. In other words, we must have an emotional understanding of their life story. We cannot expect to move anyone unless we are moved ourselves.
What follows is a discussion about some of the common setting up life themes, stock prosecution arguments and some of the do's and don'ts to serve as general guidelines for counsel in the mitigation phase of a death penalty case. It is crucial to note that while there are some common themes, every case is different and each stands on its own particulars. It is in those reasons, and many others, that underlie the importance of stepping into our client's shoes and understand completely their particular individual life story. Otherwise we won't be able to individualize and humanize our client before the jury. Only then will that client come alive in all of his or her humanity, no longer an empty shell but a human being seen through the eyes of compassion.
SETTING UP LIFE THEMES
1. Acknowledge and accept the jury's verdict finding your client guilty.
2. Show empathy for the pain of the deceased and family.
3. Emphasize the personal moral responsibility of the individual juror to make an individualized moral decision. Don't allow any juror to hide behind the group.
4. Communicate that "life" is a severe punishment and punishment enough.
5. Explain that mitigation is not offered as an excuse or justification.
6. Communicate the client's life story, bringing to life the losses, sufferings, and disadvantages endured by the client.
7. Demonstrate that "life" is the appropriate punishment for this person.
8. Be specific as to the themes of the client's life - examples:
a. Residual or lingering doubt
b. Remorse/post arrest cooperation with police
c. Low intelligence/mental retardation
d. Other mental health issues
e. Statutory mitigators when they apply
f. Client is not a future danger or has adjusted to prison life
g. This person's life has value
h. The client loves and is loved by his family
i. The impact of his execution on members of his family
j. An abusive childhood the client did not choose
k. The client was unprotected as a child
l. Client's impoverished background profoundly influenced his life
m. Any other facts about the client's life and character that will resonant in the hearts of the jury as per Lockett v. Ohio, and Eddings v. Oklahoma.
STOCK PROSECUTION ARGUMENTS
The following are some of the stock prosecution arguments or themes that prosecutors will employ in most cases:
1. Mitigation is just an excuse. Explain to the jury that we are way past the excuse stage; that door is closed. The law specifically requires that mitigation, if established, must be considered in the decision to impose life or death.
2. The client is just plain mean. No life examined entirely reflects that of meanness. Everyone has good and bad within them. No child pops out of the mother's womb only to be mean.
3. Client just utilized drugs and alcohol for pleasure. Is it any wonder, given the traumas and sufferings in this person's life that he turned to drugs and alcohol to anesthetize the pain?
4. The client is just a cold-blooded killer. The jury needs to know that we are not focused at this stage of the trial on a frozen moment in time, but instead on the client's entire life, which is much more than just a few seconds.
5. The client is just an animal. This objectionable language is another way to dehumanize the person and make it easier to kill him.
6. The client has forfeited his right to live. This type of moral superiority fails to take into account the spectrum of the person's entire life that includes the multitude of losses and sufferings the client has endured that brought him to the place that he now sits. A person is always more than their worst act, there is an explanation for how everyone got to the present moment, and all life has value. No one is beyond redemption.
7. Client is not a human being. Again, the prosecutor's simplistic view of human existence ignores that each person is a child of God. The prosecutor will continue the effort to dehumanize a human being.
8. Life in prison is not even a slap on the wrist. We should never let the prosecution discount the miserable existence of life in prison without the possibility of parole. When a person is confined for the rest of his life to an 8 X 10 cell, where a bathroom is a bedroom and is void of human contact, this is hardly life as we know it. The client will never again hug his children, or read them a bedtime story, or even taste real food or smell the freshness of springtime air.
9. The death penalty should be taken off the books if not given here. They say this in every case - another way of taking away the individuality of the enormous decision to eliminate a human being from the face of the earth. We must remember that no case is hopeless: Terry Nichols was given life, the Unibomber negotiated a life sentence, and all of the Embassy bombers in the year 2001 received life sentences.
10. The client's siblings turned out fine as opposed to the choices your client made. This argument ignores the fact that no two people are born the same, even if they grew up within a similar environment. There are always ways of distinguishing the pivotal points in life and the genetic predispositions of all human beings.
11. Other disadvantaged people have chosen not to kill. This represents another attempt by the prosecution to paint a picture of evil on the face of your client. We all internalize life's experiences differently. There will be losses and sufferings in your client's life that he or she simply was not able to overcome.
12. The law provides a formula that requires death in this case. The prosecution will always argue from a framework of black and white, in an effort to reduce the jury's decision to a simple, routine one. There is nothing simple or routine about the moral decision to take the life of another human being. The law sets up an elaborate system intended to take into account the complexities of human conduct and experience that necessitates carefully considering every aspect of the person's life and character.
13. The person poses a future danger to society. This argument rarely succeeds if properly rebutted. The prisons are well equipped to safely house anyone. Charles Manson has not hurt anyone since he has been imprisoned. In addition, your client may have already demonstrated an ability to adapt to a structured environment, such as jail or prison.
14. The defendant showed no mercy to the deceased. Again, we are well passed that. This case is not about mercy and forgiveness. It is about whether life imprisonment is a sufficient punishment, and the appropriate one in this case. Should the person be completely eliminated from the human race based on all of the mitigation, and circumstances that have influenced his life?
15. Victim impact evidence. Victim impact evidence can be horribly brutal, persuasive and compelling. However, jurors cannot base their decision on sympathy or passion. If killing the person on trial could bring the victim back, he would gladly trade places. It is time to stop the killing. The plight of the victim's family will not improve if the defendant dies. His death will only impact the innocent members of his family - his children, his parents, similarly to the way the family of the deceased has been affected.
The above represents just a few of the common stock prosecution themes you may expect in most any case. These themes prey on the jurors fear, anger and outrage. These themes attempt to dehumanize the person on trial, and make the decision to kill easier for the jury by discounting not only the individuality of the person on trial, but the jury's sense of responsibility as well. It is our challenge to make sure that no individual juror is allowed to hide behind the illusion that this is a group decision. It is not. It is a personal, individual, moral decision that each person must make for him or herself. At the end of our lives, we will not be able to rationalize any decision we made by relying on someone else. In the end, every vote counts, the opinion of every juror must be respected and each juror must take full responsibility for the consequence of his or her decision as to whether to choose life.
DO'S AND DON'TS
What follows now is a general checklist as to some of the do's and don'ts that capital counsel should consider when presenting the client's life story. This list is not by any stretch exhaustive, and the particular circumstances of every case will dictate whether these, or many others apply.
1. Do show why life is right for this person in this case. Do not argue your personal philosophy about the death penalty.
Jurors are already predisposed and pre-qualified to vote for death. To argue against lifelong beliefs would not only prove offensive to the individual jurors, but it will cause them to turn away from the individual decision they must make.
2. Do extensively prepare to tell the client's life story and find the compelling themes to communicate and persuade the jurors to choose life. Don't put all your eggs in the innocence basket.
It takes a lot of work and trust before your client will open up and divulge painful memories that have influenced his life. We are all the sum of all of our experiences. None of us would be where we are today were it not for a few individuals and the God-given talents that we possess. Very few of us would have made it to law school if our families did not put some value on education and some real effort in protecting us from life's devastating blows. And no defense to the charges themselves is foolproof. We must be prepared to tell our client's story, because if not us, who will?
3. Do empower each juror to take individual responsibility. Don't refer to the jurors as a group, e.g., "The Jury."
As stated earlier, we cannot allow any juror to hide behind the group.
4. Do acknowledge the pain/loss of the deceased's family.
Somehow we must get on common ground with the individual jurors. When we let them know that we, too, are human, and that we acknowledge and feel deeply the loss that was suffered by the deceased and his family, jurors are often relieved. And if the jurors perceive us to have an open, caring and compassionate heart, and if can convey either remorse or compassion on behalf of our client, they will be much more open to considering the client's life story.
5. Do explain the structure for considering mitigation. The law never requires a juror to kill the client.
Recent studies have shown that many jurors do not understand the weighing process that they are required to undergo. Instead, as a result of confusion, many believe that they were required to vote for death once the prosecutor has established aggravation. And many jurors believe that the defense bears the burden of proving mitigation beyond a reasonable doubt. We must do whatever it takes to properly educate jurors in understanding their role and function, as well as the weighing process itself. The law never does require that death be imposed. A juror would not fulfill his oath by simply adding up numerically the statutory and non-statutory aggravators and mitigators. The juror can assign whatever weight appropriate to any mitigator, and the burden never shifts away from the prosecution.
6. Do integrate the life theme throughout the case.
There are cases where the mitigating evidence is admissible and significant to both the innocence phase as well as the penalty phase. Whenever possible, frontload or integrate this evidence. For example, in a case where a person is mentally retarded and unable to appreciate or understand the police controlled interrogation process, this powerful evidence bleeds over into both phases of the trial. Or if the person charged has severe mental or emotional problems, this, too, can apply to both phases of the trial. If there are any witnesses or family members testifying against your client, there could be certain biases about how your client was treated that could impact and be admissible in both phases of the trial.
7. Do support the case for life with evidence.
Stephen Bright, The Director of the Southern Center for Human Rights, defines a life theme as "a set of reasons, supported by facts, that will persuade the jury that the client will be sufficiently punished by a sentence of life imprisonment instead of the death penalty."
We must find the resonating themes that compel the jury to vote for life and we must sufficiently develop and present the story of the client's life if we expect jurors to believe the story, understand it compassionately and then return a life verdict.
8. Do not ask the jurors to forgive your client. The issue is not forgiveness; it is punishment. It is not whether but how to punish.
We are not asking jurors to forgive our client, only to punish him sufficiently and appropriately. If the jurors understand enough about the severity of a life sentence and enough about our client's life story, they can feel good about the decision to choose life.
9. Do get an instruction that life means life/no parole.
Through the ever brilliant and tenacious work of David Bruck, the law has just recently been clarified that the Judge must instruct the jury, upon request, that life without the possibility of parole means just that. If jurors realize the absoluteness of a life sentence without parole, not only will some of their fears be allayed, but they can feel that the punishment is appropriate.
10. Do anticipate jurors concerns and prosecutor's stock arguments.
Many of these stock arguments and jurors concerns have been discussed earlier in this paper. Some additional ones are as follow:
a. The person charged is looking for a second chance
b. These photos are so horrific and the killing so brutal
c. The person charged has exhibited no remorse
d. Appeals to law enforcement
e. The person charged chose his punishment by his actions
f. The person charged is a cancer on society
g. The jury is just an insignificant cog in the larger wheel of justice
All of these stock arguments can be answered similarly to the ones earlier discussed.
11. Do present the evidence in a manner in which mercy and compassion flow from its presentation.
We must ever be aware that the way we choose to dramatize and present the client's life story may prove the difference between life and death. While we have no control over the facts of the crime, we have a tremendous influence on the themes of life we choose, and the way in which we tell them. In order to choose appropriately, and tell the story compassionately, we must first understand ourselves the intricacies of the client's life that brought him to where he now sits. We must also remind jurors that in voir dire, they agreed that they would want to know everything about the client's life before deciding punishment.
12. Do use the language of life to empower jurors to choose life.
We are the client's last hope to save his life. We must be effective communicators. We must find some way to connect the juror to our client's life story. Whenever possible, use examples that a juror can relate to. Think about what it would be like, for example, if you were mentally retarded. The prosecution will try to say that your client is "mildly" mentally retarded. There is no mild case of cancer, as Steve Bright often says.
A mentally retarded person goes through life with a severe handicap. Embarrassment, humiliation and shame have always followed a mentally retarded person, who does everything he can to hide the defect. Imagine going through life being treated like you were never good enough, always less than, forever tainted. How would this influence your life? Where would you be today if you were born with a defective brain? Do we really punish a six year old the same way as a sixteen or a twenty-six year old?
As stated above, there is no such thing as the hopeless case. A lawyer less prepared and less motivated than Michael Tiger would not have been able to save Terry Nichols life. Presenting the real story of your client's life compassionately along with supporting documentation and evidence, can make the difference between whether your client lives or dies. We can and do make a difference, as has been demonstrated by the number of lives saved through the dedicated efforts of committed attorneys. If we are prepared and motivated, jurors will choose to give life.