“The Crying Game”

Scott Peterson was convicted of the murder of Laci Peterson and his trial is now in the sentencing phase. Whether or not he will live or be executed is being decided by a jury based on emotions.
This article asked the question should the decision of life and death be left up to emotion? Should the death of an individual be decided by using one’s heart as a guide or should there be standards for sentencing a convicted man to death?

Two days into the penalty phase of the Scott Peterson trial, it’s clear that Kleenex must be flying off the Safeway shelves in Redwood City, Calif. Jurors sobbed openly as Laci Peterson’s mother testified on the first day of the guilt phase. Peterson himself cried when his dad testified yesterday. And jurors who made it through hours of the gruesome testimony offered at the guilt phase have morphed into puddles when faced with photos of the dead victim and emotional narratives about what a great mother she would have been.

Peterson was convicted last month of murdering his pregnant wife, Laci, and his unborn son, Conner. He now faces the prospect of either life in prison or capital punishment. And on Tuesday, as the penalty phase of the trial began, it became clear that “penalty phase” is simply a term of art for “blatant emotional manipulation,” as both sides did everything in their power to persuade the jury to vote only with their hearts.

We have become so accustomed to bifurcated capital trials in America—trials at which the guilt phase is separate from the sentencing phase—that we forget how truly bizarre this system can be. We end up with a “head” trial—a dispassionate hearing on what happened, in which evidence is sometimes cruelly limited to the cold, hard facts. That proceeding is closely followed by a “heart” trial—a mini hearing full of hearsay and legally irrelevant detail: The defendant was abused as a baby; the victim was a wonderful wife and mother. Witnesses are, in short, encouraged to take the stand and emote—describing how desperately they miss the victim, or how tragic the life circumstances of the defendant really were. And, instead of deciding guilt beyond a reasonable doubt, jurors are asked to engage in a subjective balancing test—weighing a list of aggravating factors (was the murder particularly heinous; was it done for financial gain; does the defendant have a violent criminal history?) against a list of mitigating ones (was the defendant abused as a child; was he on drugs or otherwise impaired in his judgment?).

I find it ridiculous that the life of a man, albeit a convicted murderer can …

come down to whether the jury believes Laci’s family is ultimately more tragic than his.

I am not a supporter of the death penalty myself but if capital punishment remains a possible sentence for convicted felons there should be an establish criteria for its sentencing. 

The notion that there is a place in the chilly, linear life of the law for this sort of sentimentality—the unrestrained id of emotion untethered from logic—is beyond strange. The idea that in order to decide whether a criminal deserves the “ultimate punishment” a jury must abandon reason and clarity for emotion and intuition inverts everything the law otherwise represents. When else do we contend, as a society, that people exercise fantastic judgment at that moment when they are sobbing and gasping for breath?

The author also goes on to question the constitutionality of this split system of trial and sentencing.

the penalty phase no longer represents a contest between the defendant and the state but, rather, becomes a contest between the defendant and the victims’ survivors, is a result of years of advocacy by the victims-rights movement. Whereas victim-impact statements were once prohibited at trial, for example, the Supreme Court now holds them to be constitutionally permissible. Whereas the victim’s family used to be almost incidental at a capital trial, they now play a central role, most notably at the penalty phase.

I would love to hear some opinions of this system and since I have read how most feel about abortion I’ll be curious to see how you feel about killing adults. Our president has no problem with it that’s for sure.


12 thoughts on ““The Crying Game”

  1. I’m not sure I’ve ever read about anyone being put to death based on circumstantial evidence.  That’s certainly not to say it hasn’t happened.

    My stance on the death penalty is a little different than most, but I will say that if you’re going to kill someone, you should be damned sure, 100%, proof positive that they committed the crime in question.  There is no way I could sit on a jury and hand down a death sentence in this case.

  2. My stance on the death penalty is a little different than most, but I will say that if you’re going to kill someone, you should be damned sure, 100%, proof positive that they committed the crime in question. – Deadscot

    Here in Illinois, DNA testing sprung a couple score of guys from death row before then-governor George Ryan (Motto: “I may be corrupt but killing innocent people is just wrong!”) commuted all the sentences to life-in-prison.

    To hear all the caterwauling and moaning, you’d think Gov. Ryan personally dug up all the murderers’ victims, re-animated them, and re-murdered them himself.  Some people are apparently pretty invested in the notion of killing ‘em!

    Luckily for the innocent guys we had corrupt George Ryan instead of TrueChristianTM Bush for governor here.

  3. What surprised me most was Scott’s lawyer pleading for mercy. If indeed he did kill his wife and unborn child, I really can’t see why anyone would show mercy when he showed so little in killing them. Over what? An affair?

    That said, should the death penalty be used? I agree with deadscot, they had better be darn certain that he was in fact the one who did it.

  4. I feel the families should get to decide life or death, all the talk about objectivity and being too close and emotional is BS – the people who were hurt the worst shoudl get decide the fate of the person who hurt them.

  5. You know, as much as I think some people deserved to be beaten to death with rubber frogs, I don’t think that we as a society have the right to condemn someone to death.  I just don’t really see a difference between someone on the street killing someone or us collectively killing someone under the auspices of the criminal justice system.  Maybe I’m just a softy….

  6. Well, I’ve only been reading this board for a month or so, but I’ll step forward with my thoughts.

    I guess I should begin by stating that I support the death penalty in principle only.  That is to say, I think there are some crimes for which death would be a fair punishment.  I cannot, however, support the death penalty in practice, since it used disproportionately against minorities, and since it seems to be largely ineffectual as a deterrent.  And I can’t think of a way that it could be meted out fairly and impartially.  Judges certainly bring their personal biases to the courtroom, and, having served on several juries myself, I can attest that they are made up of biased and emotional human beings.  Add to this the fact that juries are often expected to interpret complex and highly nuanced arguments, regardless of their lack of relevant experience or expertise, and it’s easy to see why attorneys on both sides play more to jurors’ subjective and emotional reactions than to their objective and rational ones.  As a matter of course, both prosecutors and attorneys work hard to select jurors who are uninformed and can be easily manipulated.  Scott Peterson was convicted on circumstantial evidence, without DNA or even significant eyewitness testimony.  Plus, in a high profile trial like this one, the prosecutor stands to gain substantially from obtaining a conviction, and the entire trial can become a circus act. 

    It’s a tough issue for sure, but my feeling is that the death penalty should be abolished, and, failing that, it should never be imposed on anyone convicted on circumstantial evidence.

  7. I believe that the jury system should be completely removed. Sure it has some advantages and the whole ‘being judged by your peers’ thing but with regards to the entire judicial system, it is an antiquated system. Note I said in the interest of the system rather than in the interest of individual parties.

    1) Mistrials
    Removal of the jury system could significantly reduce the amount of mistrials and speed up the judicial process and reduce costs. This especially relates to jury misunderstanding the question posed to them by the judge. Or the judge understanding the question but was not clear in formulating the explanation. It also helps removes the entire jury selection process.

    2) Equality & Accountability
    There is a sense of randomness among the selection of the jury and that one may be lucky to get a panel that prefers one decision over the other. While to a certain extent such a problem also affect judges because there is a randomness in selecting which judge to preside, it seems that this randomness occurs in a smaller pool than mere selection from the wider public. Of course this may result in a form of insularity, judges compared to jury are accountable for the decisions they make. For them this is a job but for jury it is often a one off thing. Thus an example of this would be jury nullification where despite a direction ordered, the jury on their own makes a decision that ignores the facts.

    3) Emotions and Gullible
    Juries are more prone to emotions rather than viewing things objectively. This rather than lawsuits per se explains the reasons for the high punitive damages in US. For example in UK, damages are determined by the judges. Although in US the judges too have the power to strike down. Think about it this way. For juries many of them may be seeing court action for the first time or if not they do not really see this too regularly. Lawyers would know the ‘tricks’ or things to say to appeal to the emotions of the juries. However, a judge which sees this day in and out would be less affected. It is somewhat like a student making excuse to a teacher, who has heard it all. An example of this movement towards the ‘persuasive’ jury is in patent trials. At one time it used to be judges but now they realise it is better to go for jury trial. The going rate for a patent trial is about $3-5m, where for example the lawyers would bring in “test juries” much like test audience for movies and carry out their arguments.

    4) Death Penalty
    I am conflicted about this. The main problem I have with it is the possibility of mistake. Also the argument that death penalty is a serious violation of human rights for what can be more fundamental than the right to live. If one can ban torture, then what the is reason for allowing death penalty.

    On the other hand I do support it for I believe that freedom in society or free choice means freedom from fear. After all the great cliche is with great freedom comes great responsibility. And if you violate it you should pay the price.

    Of course there is the argument that death penalty does not really have a deterrent effect. But the counter to it is that even if there is no deterrence what you have done is to remove a criminal.

    However, studies on deterrence shows that one requires a great push to reduce crime both social/economic and also punishment. The minor changes in criminal activity as a result of stricter punishment is because the punishment is not severe enough to shift the entire curve and that what one is doing is merely moving along a curve which has little effect.

    Therefore on this position I support an increased use of death penalty unless one falls within certain defense or justification such as self-defense, necessity, duress, insanity etc.
    1) All murder
    2) Use of firearms in committing a crime. This is even if the gun is not fired. Mere waving of the gun is sufficient
    3) Any serious bodily harm on a person
    4) Forcible rape
    5) Dealing in drugs outside of government approval
    6) ‘Criminal intimidation’
    7) Participation in a gang whereby one of the above crime is committed and the member has knowledge of it but fails to report

    Of course all this must come with a reform of the judicial system so as to reduce the cost of death penalty.

  8. Pop Tarts, Your post made me feel a little bit chilly. Let’s take it to another logical possible conclusion. We create a computer system with logic built in to weigh and determine probability of the veracity of testimony based on biomteric data and a database of historical information.

    All other known facts/information are entered. Prosecution can point to certain facts as being questionable, and defense can do likewise. The system having all of the laws coded and electronically store can then analyze the case.

    Judge gets an automated recommendation regarding guilt or innocence and some punishment recommendations if guilt is the outcome. Judge can then press one button for concur and another for let’s go through this again.

    I don’t know, I have been through the legal system as a victim of a very clever creep (attorney, not plaintiff, although he was no sweetheart himself), and I was very greatfull for the human element of people possibly like me on that jury that found for me in less than 10 minutes. The public needs to watch over those in the legal profession. They propagandize about policing their ranks for ethics etc. but these Bar Associations are just clubs and lawyer advocacy groups that have a pretense of serving the public through management of ethics problems within their professsion. This is a lie.

    As for punishment, although I have no basic problem with capital punishment for the heinously unsuited for society types, I feel that life totally away from society (all society, even prison) is more of an actual punishment than death. Death is the more merciful way to eliminate the heinous from society, but very expensive as Pop Tarts points out.

    For Scott Peterson however I recommend public burning at the stake while looking a a picture of his wife. Or maybe drawing and quartering …

  9. The computer thing would be good, with regards to the initial trial whereby facts need to be determined and would not be possible during the appellate courts deciding on point of law.

    Remember what is fair and what is right may mean different things to different people and thus a large part of justice is equality of treatment. If someone does ACT I and gets damages of $10 and another person does same ACT I and gets $10 million there is a problem.

    As for your encounter with the law it does not show the strength of the jury system. A judge could also listen to the case and reject it. I could just as easily use such a case as evidence against a jury system. An impressive lawyer may believe that he has a good probability in persuading the jury and thus result in starting of an action that would not have normally been initiated. But a judge may have seen it all and simply reject it.

  10. Actually, I did some research on this during a debate with friends in college.  The cost of life in prison is about the same overall as the cost of the death penalty.  The difference is that life in prison takes the lifespan of the prisoner to rack up those costs, whereas the death penalty is immediately really expensive…

    Regardless of that, I think goal when dealing with murderers is to remove the threat from society.  I could really care less about the criminal itself, since it violated the social contract we have not to kill each other.  Whatever the cause, insanity, sociopathy, anger—all possible inspirations mean that that person is not operating within the realm of acceptable behavior.  The murderers’ personality is, I think quite often, unfixable.  The murder was made due to a serious mental/genetic defect that will probably remain intact in spite of any reprogramming psychologists may try to do.

    As a result, I think deterrants don’t work, period.  Not because of ineffective strategies, but because by their very nature, they can never override whatever drives someone to murder, either because their convictions are so strong, or because they don’t have the time or patience to stop and think about consequences—the murderer’s reasons are faults of it’s personality, not momentary, temporary blips.  If it can happen once, it can happen again.

    The two possible results are death, either in reality or by means of disfigurement, or life in prison. 
    For me, it is not a matter of letting the victim’s family decide; many later report no sense of relief or closure.  I believe it is society’s job as a whole to take care of societal threats.
    I agree it does come down to degree of evidence.  But we can never be 100% sure in some situations, either of the defendant’s criminality or of the courts’ fairness and honesty.  I would rather we lock them away for life because the effect is the same as killing them—society is protected.  And if we’re consistent, we won’t have to have these discussions.  It’s not because I think human life is sacred, it’s because I think that we are fallible, and I like justice.

    As for the other crimes listed by poptarts:

    1) All murder
    2) Use of firearms in committing a crime. This is even if the gun is not fired. Mere waving of the gun is sufficient
    3) Any serious bodily harm on a person
    4) Forcible rape
    5) Dealing in drugs outside of government approval
    6) ‘Criminal intimidation’
    7) Participation in a gang whereby one of the above crime is committed and the member has knowledge of it but fails to report

    1) Addressed above.

    2) That’s a bit rough.  I could see life in prison for shooting someone, but not for waving a gun.  Many people would have the balls to threaten but never use.

    3) It depends on how you would define serious bodily harm—sounds like a grey-area mess to me.

    4) Part of me is saying, yeah, Fuck ‘em!  But the other part wonders about convicts who didn’t really rape their “victims”.  It can happen that women cry rape when they stand to profit from it, or when they decide after the fact that they didn’t want to sleep with a guy.  Alcohol is another mess.  (I am saying women only because most rapes as far as I know consist of a man raping a woman).  I would support removing the man’s ability to get an erection or feel any sexual pleasure in cases where the evidence is overwhelmingly against him.

    5) That’s a bit harsh…do you mean we should kill pot dealers?

    6) What is criminal intimidation?

    7) Hmm, my jury is out on this one…

  11. New to this, but wanted to add my twopenno’th. I can understand the point of view of those who call for the death penalty for convicted murderers, and yes, if a loved one of mine had been the victim, then I would probably want to kill whoever did it. But…it is a fact that sometimes innocent people are wrongly convicted, of all kinds of crimes. The justice system is not perfect in any country, and never can be, as it is and hopefully will remain a human one. It’s terrible when innocent people are imprisoned, sometimes losing huge chunks of their lives – but how much worse to be killed for something you didn’t do?

    Also, the problem with the idea of the death penalty as a deterrent has already been flagged. What about its effect on conviction rates? It seems common sense to me that a jury would be somewhat more reluctant to convict if they know that the person they’re convicting will probably die as a result. Personally, I would prefer to see a higher percentage of convicted murderers go to prison for a long long time than a lower percentage be killed. Pop Tarts, in a list of crimes he believes should possibly get the death penalty, mentioned forcible rape (NB – is there any other type of rape?:)). I don’t know about the USA (I’d imagine it’s similar), but here in Britain there is a ridiculously low conviction rate for rape, because juries are reluctant to imprison a man based on the usual standard of evidence in rape trials (ie. the accused’s word against the alleged victim’s). How much would it further hamper the conviction rate if the jury knew the rapist would be sentenced to death, based on their decision?

    To sum up, my opinion is that the death penalty brings very little of value to a judicial system, but costs an awful lot.

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