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Court confrontations might sway verdicts

Texas Judge Lisa Fox, Court TV's Catherine Crier and NYU law professor Bryan Stevenson debate whether victim impact statements pressure jurors  into maximum sentences on "The Abrams Report."

Erin Runnion’s daughter, Samantha, was snatched from her front yard, brutally raped and murdered.  Runnion has the chance to speak to her daughter's killer in the courtroom before the jury decided his fate. 

Does reading a victim impact statements put a defendant at a disadvantage while awaiting a life or death sentence?  Justice John Paul Stevens thinks so. 

At a American Bar Association event last week, Justice Stevens called these confrontational statements “serious flaws in our administration of criminal justice.”  He also suggested that both the jury selection process and the judge election process in death penalty cases are unfair to defendants. 

Court TV anchor and former elected judge, Catherine Crier, who is the author of the new book, Contempt: How the Right is Wronging American Justice, Lisa Fox, a current elected judge in Dallas and Bryan Stevenson, NYU law professor all join Dan Abrams.  The group debated whether victim statements could be an aggravated factor in deciding a murder's sentence.

DAN ABRAMS, ‘ABRAMS REPORT’ HOST: Catherine, let me start with you.  On the issue of victim impact statements in death penalty cases, look, I’m OK with it because I think in the end what it is a catharsis.  It’s an ability for the victim’s family members to have a say at some point in the process. 

CATHERINE CRIER, COURT TV ANCHOR: But Dan, the problem is it’s completely inadmissible.  I happen agree with Judge Stevens.  It’s a very unpopular position.  It’s being admitted, but it has no probative value whatsoever.  It’s entirely prejudicial. 

People I know are saying prejudicial to the rights of the defendant.  I’m not applauding some scumbag defendant.  But there is an appropriate place and that is just what you said, the cathartic element.  Let them talk to the defendant after sentencing. 

Let them talk to the defendant outside the presence of the jury or the tier of the facts.

ABRAMS: You’re OK with it then, right, as long as the jury has determined death.  Let’s say a jury recommends a death penalty and then before the judge officially imposes the death penalty, you’re fine with that? 

CRIER: Absolutely fine. 

ABRAMS: All right.  What about that, Lisa Fox?

LISA FOX, DALLAS COUNTY CRIMINAL COURT: I don’t have a problem with it during the punishment phase.  People forget that jury trials are bifurcated.  You have a guilt or innocence phase and that is where you spend your entire time basically protecting the rights of the citizen accused.  During punishment, you have to look at the defendant, everything he’s done in the past, and I believe that the effect that it has on the victim’s family or the victim himself, and like in sexual assault cases, I think that is relevant. 

People’s lives are destroyed.  People’s lives have been turned upside-down and a jury should take that into consideration when determining what is the appropriate sentence for this particular crime for this particular defendant. 

ABRAMS: Bryan Stevenson, the bottom line, is it not, that when it comes to the death penalty, what you’re really saying is how awful was this?  There is no objective way to determine that for any jury, and so why shouldn’t the impact on the family members be a factor, the same way how gruesome the crime was is a factor?  I mean, it’s one of these sort of mushy things that jurors have to kind of go with their gut on? 

BRYAN STEVENSON, NYU LAW PROFESSOR: No, I think we’ve upheld the new death penalty in part because we don’t want juries going with their gut and relying on factors that we can’t evaluate.  We now have aggravating circumstances and the courts have said those are the factors that juries must consider.

ABRAMS: But those circumstances are so hard to define some of the time. I mean you can’t say that there is some objective criteria that allows you to say you know how gruesome, how brutal the crime was, et cetera.

STEVENSON: But they are precisely defined.  But I think the bigger problem, Dan, is that you know we have always presumed in our criminal justice system that all victims are created equal.  Why should it matter if a 4-year-old child is murdered whether her mother is an articulate corporate executive or her mother’s a prostitute. 

ABRAMS: Well then why should it matter then how brutal the crime was if in the end the person is dead anyway?

STEVENSON: Well you can debate whether we should have brutality of the crime as an aggravating factor.  Most death cases are imposed because it accompanies a felony, because of the number of victims, things that are quantifiable and objective, but the harder part about the death penalty it’s not the nature of the aggravation, but the nature of the mitigation. 

And we started introducing victim impact evidence because somehow people thought that the penalty phase ought not be just about the defendant.  Well the criminal justice system has always tried to keep who the victim is as a non-relevant factor. 

Because if we start considering who the victim is, it’s not just defendants that are going to be prejudiced.  It’s also going to be many victim who are poor, who are people of color, who are inarticulate, who are disfavored.  Those are the people I’m frankly as concerned about with the introduction of victim impact evidence as the right to defendants.  And most murder victims in this country are poor, black, disfavored, marginalized.

ABRAMS: In the Jeffrey Dahmer case, the victims impact got a little out of hand.  Catherine, I remember I was at Court TV at that time.  You know that’s an example of a victim impact statement that gets a little out of hand. 

CRIER: Obviously, that is very rare.  But there’s a perfect example.  The jury, this sadistic disgusting cannibalistic individual, you really needed the impact of a victim’s family member to tell them this.  And the attributes of a crime are important.  Because you’ve got to be looking at does the punishment fit the criminal? 

A horrific stabbing in one incident versus a cold, calculated mutilation in another, you hate to say this but when you work in the criminal justice system, there are distinctions made between levels of crime that may be relevant.  But sadly there’s a place for victim impact statements.  It’s simply not as evidence in front of the jury. 

ABRAMS: Justice Stevens also talked about another issue and that is the election of judges.  He’s basically saying look if you’re elected as a judge, you’re going to have so much community pressure on you in these cases and that’s not appropriate.  Here is what he said: "The fact that most of the judges who preside and often make the final life or death decision must stand for re-election, creates a subtle bias in favor of death." 

ABRAMS: Judge Fox, I mean look, that’s true, isn’t it? 

FOX: No, I just think that is just offensive.  So I guess if you are an elected official, you’re less ethical, less...

ABRAMS: No, you’re more prone to care about what the public thinks and as a result, you’re more likely to say if the public is angrier, I’ve got to go with death. 

FOX: I totally disagree.  Number one, it’s not the judge that goes with death.  It’s the jury that decides whether or not...

ABRAMS: Ultimately the judge decides.  It’s the recommendation from the jury, isn’t it? 

FOX: The jury decides whether or not that person — at least in Texas the jury decides whether or not the defendant accused is sentenced to death or not.  And they also forget that it’s the prosecutors who decide whether which case that they will take and try as a death penalty case. 

ABRAMS: They’re elected in a lot of cases too though.

FOX: The DAs are elected.


FOX: That is correct. 

ABRAMS: All right Bryan final word on this. 

STEVENSON: Well there are nine states where judges do the sentencing.  We’ve seen judges targeted because of unpopular death penalty decision: Rose Bird in California, Chief Justice Aultman in North Carolina, Robertson in Mississippi, Penny White in Tennessee. 

I think it’s unquestionable that when we make the death penalty a popular referendum, which is what judicial selection through the electoral process sometimes does, we undermine the reliability, independence and fairness.

Watch the 'Abrams Report' for more analysis and interviews on the top legal stories each weeknight at 6 p.m. ET on MSNBC TV.