| HOME | HELP | FEEDBACK | SUBSCRIPTIONS | ARCHIVE | SEARCH | TABLE OF CONTENTS |
|
|
|
|||||||
|
|||||||||
REGULAR ARTICLE |
Dr. Edersheim is Staff Psychiatrist, The Law and Psychiatry Service, Massachusetts General Hospital, and Instructor of Psychiatry, Harvard Medical School, Boston, MA; Dr. Beck is Senior Psychiatrist, Department of Psychiatry, Beth Israel Deaconess Medical Center, Boston, MA, and Professor of Psychiatry, Harvard Medical School, Boston, MA. Address correspondence to: James C. Beck, MD, PhD, Department of Psychiatry, Harvard Medical School, 25 Shattuck Street, Boston, MA 02115. E-mail: jbeck1{at}bidmc.harvard.edu
 |
Abstract |
|---|
 Top Abstract Relevant Findings from the...Death Penalty Trial StrategyReferences |
|---|
Drawing on data developed by The Capital Jury Project, Montgomery et al.1 report on real jurors from real cases. The Project, funded by the National Science Foundation, was undertaken to gain a better understanding of jury behavior in capital murder cases. In the Project, four or more jurors from capital murder trials in death penalty states were interviewed, typically, for three to four hours each. Using the interview data from South Carolina cases, Montgomery et al. report jurors’ responses to expert mental health testimony. These Project interviews involved 214 jurors in 65 capital murder cases, 30 of which involved death sentences, and 35 of which did not.
Answers to three questions were the focus of the Montgomery et al. report. Jurors were asked to rate how well each question described the defendant: one question on defendant dangerousness—"dangerous to other people"—one on the defendant’s general mental condition—"emotionally unstable or disturbed"—and one on his condition at the time he committed the murder—"went crazy when he committed the crime. " ("He," because approximately 90% of capital murder defendants are men.)
The principal findings were:
These findings about the role of defense experts were consistent across a wide variety of statistical models in which other relevant variables were held constant: the defendant’s criminal history, the viciousness of the crime, the juror’s race, and the interaction of the victim’s race with the defendant’s race (i.e., white victim-black defendant cases were not judged as different from any others).
What do these findings tell us? First, we think they provide a resounding endorsement of jurors’ common sense. Although the jurors had not conducted a literature review, they behaved as if they had. There is no evidence that psychiatrists or psychologists can predict dangerousness in the individual case better than anyone else. Jurors appropriately refused to give any weight to expert opinion on this subject. In contrast, jurors recognized that mental health professionals have expertise in evaluating mental condition or psychological state, and the jurors appropriately considered expert testimony in forming their opinions on these questions.
There are limitations to these data that are important. We do not know what the experts actually testified to in the 65 cases. We do not have any direct evidence that the defense experts’ opinions had any effect on how the jurors decided to sentence the defendant. However, these findings are an important beginning, and they point us in a direction that may have profound practical consequences. They also increase our knowledge and understanding of jury process in capital cases.
|
Relevant Findings from the Literature |
|---|
|
TopAbstractRelevant Findings from the...Death Penalty Trial StrategyReferences |
|---|
Again using the South Carolina data set, Garvey et al. 3 looked at answers to the questions about how much difference it would make to jurors in considering the sentence if certain facts about the defendant were true. Regarding the mitigation, a history of mental illness, 56.2 percent of jurors reported that they would consider a death sentence to be slightly or much less likely if this mitigating factor were shown. For mental retardation, the comparable percentage was 73.6; for severe childhood abuse, 38.0 percent; and for a failed attempt to get help, 48.2 percent. These data were extracted from answers to the hypothetical question: "How much difference would it make?" not from answers about what actually influenced jurors. Still, the data suggest that evidence on mitigation of the type that mental health and social science experts are well able to provide could sway opinions in close cases. Freedman and Beck4 reported that a history of the defendant’s trying but failing to get help was common in the lives of death row inmates. The authors referred to this as "institutional failure."
Lastly, the question of mitigation is directly relevant to the role of race in capital sentencing. Baldus et al., in their review of post-Furman5 death penalty evidence of a role of race in capital sentencing, state that "race of victim is a substantial influence in jury sentencing decisions based on failure to find mitigation in the case" (Ref 6, p 1715, emphasis added). Hence, our argument is that expert mental health evidence could influence not just sentencing outcome but could play a salutary role in limiting the impact of racial prejudice on sentencing outcome.
There is one important caveat, however. There is no actual evidence that expert opinion influences jurors’ sentencing decisions. If it can be shown in future research that jurors’ decisions on life or death are related to the presence of defense expert testimony at the sentencing trial, then the absence of such testimony may raise a legitimate basis to argue that defense counsel was ineffective. Ineffective assistance of counsel is the primary basis on which the federal courts hear an appeal of a capital sentence.
|
Death Penalty Trial Strategy |
|---|
|
TopAbstractRelevant Findings from the...Death Penalty Trial StrategyReferences |
|---|
This conclusion that evidence of mental abnormality influences jurors’ decisions has far-reaching implications for the conduct of capital trials and for subsequent appeals of death sentences. With respect to conducting both the guilt and penalty phases of a capital trial, it is clear that competent defense attorneys must make a considered and informed decision about whether and how to present mental health or mitigating evidence at one or both phases of the proceedings.9–11 In the traditional analysis, defense attorneys must weigh the potential benefits of presenting sympathetic information about a defendant’s past, such as a childhood characterized by violence, a history of drug dependency, or the presence of a major mental illness, against the possibility that this evidence may also reveal that the defendant committed other crimes or has a mental illness that might make him a poor candidate for rehabilitation. The notion that juries give ample weight to the typically mitigating explanatory factors brought forth by defense mental health experts and less weight to predictions of future dangerousness by prosecution experts should tip the balance in favor of presenting this background evidence as a penalty phase strategy. In essence, these findings may alter the double-edged sword problem of presenting mitigating factors to the jury that might be construed as enhancing the perception of the likelihood of the defendant’s future dangerousness.12 This is in keeping with the views of many prominent capital crime defense attorneys, who believe that appropriate and psychiatrically sound mitigating evidence is effective in any capital case, despite the presence of overwhelming aggravating factors.11
Perhaps even more significantly, these findings are relevant to the appeal of a death sentence based on the claim of ineffective assistance of counsel. It is well established that the Sixth Amendment to the United States Constitution entitles all criminal defendants to the effective assistance of counsel. In Strickland v. Washington,13 the Supreme Court set forth the two-part test which applies to such a claim, namely that the appellant must show that "counsel’s representation fell below an objective standard of reasonableness" and "that there is a reasonable probability, but for counsel’s unprofessional errors, the result of the trial would have been different." The Strickland test imposes a low standard of competence for criminal attorneys, and the Court has articulated that it is "highly deferential" to trial courts when evaluating ineffective assistance of counsel claims. The application of the Strickland standard in death penalty cases has been widely criticized as undermining the right to counsel, as it has significantly curtailed appellate review in these cases.14,15 Defendants have alleged the ineffective assistance of counsel in death penalty cases both for calling and for failing to call mitigation experts, and neither type of claim has fared well under the Strickland test.16 In most cases that assert that failure to use a mitigation expert constitutes ineffective assistance of counsel, appellate courts have declined to overturn the sentence determined by the lower courts. The only consistent basis for overturning death sentences on the basis of ineffective assistance of counsel has been the complete failure to present mitigating evidence and failure to present mitigating evidence of mental impairment.11 Under the so called "performance prong, " the courts have held that counsel’s performance was reasonable if the failure to present mitigating evidence could be explained by articulating any possible strategic basis for the choice. When conducting a "reasonableness" review, appellate courts have upheld attorney performance by supplying hypothetical strategic concerns that may have motivated trial counsel’s decisions, even when the record does not provide any support that the attorney considered such a strategy.16,17 Similarly, under the "prejudice prong," the courts have concluded that the failure to present mitigating evidence did not constitute the ineffective assistance of counsel, because the cumulative impact of the aggravating evidence was so great that mitigation would not have prevented imposition of the death penalty.
The results of this study have important implications for post-conviction review under the Strickland standard. With regard to the Strickland reasonableness test for attorney performance, evidence that mental health expert testimony affects jurors’ perceptions of the defendant’s mental condition may render an attorney’s failure to present this evidence a less defensible generic strategy on post-conviction review. In essence, these data would support the dominant view of the bar that failure to present mitigating evidence, absent counsel’s well-grounded belief that it would worsen the outcome for the defendant, would constitute representation that is below the current standard of legal representation.18 Similarly, if juries accord particular weight to defense mental health experts regarding mitigating evidence, it may also alter appellate court analysis under the "prejudice" prong of the Strickland test. Empirical evidence that juries place less faith in psychological testimony regarding future dangerousness than they do in evaluations of the defendant’s mental functioning may undermine appellate court conclusions that defendants are not prejudiced by the absence of mitigation because of the "cumulative" nature of the aggravating evidence. It would be premature to base these arguments solely on the data presented in the Montgomery et al. article, as there is no direct evidence that the weight accorded to defense experts translated into a decision on how to sentence the defendant. If subsequent research establishes a direct link between defense expert testimony and the jury’s willingness to impart a death sentence, it is likely that both attorney trial strategy regarding mental health evidence and ineffective assistance of counsel analysis will be altered, in the ways outlined herein.
|
References |
|---|
|
TopAbstractRelevant Findings from the...Death Penalty Trial StrategyReferences |
|---|
| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| HOME | HELP | FEEDBACK | SUBSCRIPTIONS | ARCHIVE | SEARCH | TABLE OF CONTENTS |
