Mary Ann Tally divides her time between being Director of the Trial Assistance
Unit, Center for Death Penalty Litigation, in Durham and being in private practice
in the firm of Tally & Tally, in Fayeteville, NC. A public defender for 19 years,
and a former President of the North Carolina Academy of Trial Lawyers, she
subsequently served as the organization's general counsel.
"The state did not prove its case beyond a reasonable doubt, and besides, my client was in Montreal; but if you find that my client did do it, he was insane." So goes the joke about the "shotgun theory" of defense in a criminal case. None of us can imagine making such an outlandish argument. In capital cases, however, unless one considers and develops an integrated theory for both the guilt/innocence phase and the potential penalty phase, the jury will be presented with evidence and argument that can seem almost as ridiculous as the shotgun theory.
Consistency Is Critical
The capital defense team must present and argue a theory of defense at the guilt/innocence phase of the case which will be consistent with the theory of mitigation in the penalty phase in case of a capital conviction. Such consistency is absolutely critical to the defense lawyer's credibility with the jury. Think about this issue from a juror's perspective: A lawyer argues vigorously to the jury at guilt/innocence that the client is not guilty because he was not at the crime scene. One juror believes strongly in the defense theory but is ultimately persuaded by the other jurors to return a verdict of first-degree murder. At the penalty phase, the lawyer puts on psychiatric testimony which reveals that the client has admitted the crime but has serious mental problems. In deliberations, the juror who voted not guilty feels betrayed by her belief in the defense at the first phase and votes death with the other jurors who now tell her how foolish she was to buy the defense lawyers "tricks" at the first phase.In many cases, it is difficult to plan for the possibility of a penalty phase because that contingency will place constraints on the guilt phase defense. The defense cannot sacrifice the credibility of its argument for life, however, on the assumption that it will win in the guilt phase. In fact, the case for life must begin in the first phase. The development of a good theory of life for the entire case is absolutely essential.
Potential Repercussions
As the defense team considers the case and which theory it will choose, it is important to be realistic in assessing the merits of potential defenses at the guilt/innocence phase. Consequently, one must consider the potential penalty phase repercussions. One must also consider the consequences if the defendant testifies in the first phase to a weak defense; for example, a weak alibi defense versus a reasonable doubt defense. We know from jury research that residual doubt is the strongest mitigation there is, so it is very important that doubt concerning guilt be preserved throughout the case. Such doubt is only created by using the most credible defense during the guilt/innocence phase.A word to the wise: a diatribe against the death penalty in general is never a convincing theory of life for a death-qualified jury. The key is to convince the jury that the death penalty is reserved for the worst of first- degree murders and the worst of first-degree murderers, and that because this crime and your defendant do not fit that definition, life imprisonment is the appropriate punishment. Again, the theory of life in each case is fact-specific and client-specific.
After a complete investigation and analysis of the unique facts of the crime and the client's entire life story, defense counsel must carefully craft their theory of life which should serve as the guide for the preparation and development of every aspect of the trial -- from motions hearings, through voir dire, through both phases of the trial, and to closing argument at the penalty phase. The theory must be supported by evidence at every critical point and must never be left simply to bare-bones conclusory arguments. A theory can be convincing to a jury only if it is supported by detailed and credible factual evidence. For example, I have heard lawyers complain that juries just do not "buy" arguments concerning the abuse the defendant suffered as a child. More often than not, however, the problem is that the argument is not supported by detailed and fully-developed factual evidence.
The presentation of a good theory of life can, and should, begin with pre-trial motions. For example, the investigation reveals that the murder was committed by three people, the client confessed to the officers at arrest, and the client has an I.Q. of 70. The lawyer could develop and present expert testimony in a motion to suppress, that the client suffers from mental retardation and could not understand the Miranda warnings, that he is easily led, and that he is peculiarly susceptible to pressure by the officers to "come clean." This evidence would also be consistent with a defense that the client did not premeditate the crime, that he was led into it by the co-defendants, and that he is a mere accessory. This same theory would be consistent with a penalty phase theory that the client's mentality is more like that of a child than an adult, and that we do not punish children as severely as we would a fully competent adult under the same circumstances.
The theory of life must also be developed in jury voir dire so that the lawyer can intelligently exercise peremptory challenges based on information relevant to the specific facts of the case. In the example used above, the lawyer would want to know if a potential juror believed that a child should be punished as severely as an adult, whether the juror knew anything about or had any experience with mental retardation, and what the juror's perceptions of mentally retarded people are. Jurors will only be persuaded by a theory of life which is consistent with their own particular life experiences and their own particular beliefs. Further, it is important to remember the axiom that you cannot sell what you won't buy. The theory of life therefore must be something in which the lawyer also believes.
Personal Responsbility
One theme that resonates for prosecutors throughout the case is acceptance of personal responsibility. It is, therefore, vital to be prepared to deal with that issue as the theory for life is developed and argued. Prosecutors often argue this theme in denigration of mitigation and say that mitigation is simply an "excuse" offered by the defense when nothing excuses the crime. Thus, defense counsel must ensure that jurors understand two things: that mitigating evidence is not offered to excuse the crime, and that our law requires that evidence be taken into consideration in deciding individualized punishment for this particular case.Unless there is a very strong defense that the client did not actually commit the crime, the most convincing theory of life focuses on why the defendant committed the crime and why life imprisonment is the appropriate punishment for this person and for this crime. Once that theory is chosen, counsel must stay on point and not get distracted. Questions on cross-examination of state's witnesses should advance the theory. Evidence presented by the defense should advance the theory. Questions and arguments which do not advance the theory mean either that lawyers are unprepared or that they just love to hear the sound of their own voices; the prognosis for the client's life is bad in either case. Most importantly, the evidence must be presented in such detail that the jury will be convinced of the credibility of the defense.
It is important that the theory of life be developed in a way that the jury will not be left saying, "So what?" If the client suffers from mental retardation, the jury must be convinced by detailed evidence from family, friends, school records, and expert witnesses that this is true, and further, that we do not punish a person with the mind of a seven-year-old as severely as one with the mind of an eighteen-year-old.
Though the possibilities are endless, the chart above may be useful in thinking about how to develop a convincing theory of life which is consistent throughout both phases of the capital trial.
Finally, it is important that the theory of life be made to resonate with jurors' universality of knowledge and experience. The "so what?" argument by the prosecutor might effectively be answered with the theory and theme that "we are each a product of our own existence." The argument that the client's parents say they love him and that therefore they must not have neglected him could be answered with "actions speak louder than words." The prosecutorial argument that the defendant's siblings experienced the same things in childhood as the defendant and yet were not particularly adversely affected could be answered with the fact that each of us is different, and the theory that no two people are alike is true even with siblings. How many times in life have we remarked, "how could two brothers be so different?"
With careful thought and consideration, the defense lawyer in a capital case can develop a theory of life which is consistent, credible, and tailored to the individual facts and circumstances of the case and the client. In fact, in order to be successful, counsel must do so.
Readers wishing to contribute information, ideas or articles for this column should contact :
Tanya Greene
NACDL Death Penalty Research Counsel
83 Poplar Street, NW
Atlanta GA 30303
Phone (404) 688-1202
Fax (404) 688-9440
e-mail tgreene@schr.org