June 1999
Capital Cases
By Russell Stetler
Prosecutors and politicians often invoke the families of homicide victims to justify their support for capital punishment, their decision to seek the death penalty against a particular client, or to deny clemency. The filmDead Man Walking captured very vividly the explosive anger which can erupt when surviving family members encounter anyone - even Sister Helen Prejean - identified with the capital client. Intimidated by the fear of those emotional confrontations, many defense practitioners have conceded to prosecutors the right to speak to, or on behalf of, victims. Our intimidation and fear about contacting survivors may be exacerbated by past negative experiences following hasty, ill-prepared efforts. The widow who identifies a cherished memento as evidence in a robbery-murder cannot be treated the same as any other witness. She does not belong on the list of guilt-phase witnesses to be interviewed routinely just because her name is in a police report as identifying an item of stolen property. If we have made the mistake in the past of callously treating a loved one as a mere "witness," we must learn from that mistake. Many capital defense teams are also inhibited by prosecutorial stage-management of victims' families in early court appearances, or the unverified assertion that "the family wants death." Other practitioners, however, have chosen to challenge this lethal concession and have made practical efforts to explore the survivors' complex emotions and attitudes which so profoundly affect the political dimensions of death penalty litigation. Every capital defense team, at whatever stage of litigation, has a responsibility to approach the victim's survivors. This article will offer some thoughts onhow andwhy. The related question -when? - has two answers:now andalways. Wherever the case may be procedurally, it is time to begin facing the issue of the victim's survivors. What you do and how you do it will depend on a host of factors. If your case is in a pre-trial phase, you can begin immediately with a smile, a handshake, or an introduction in the courtroom. If you are well along in the post-conviction stages of litigation, begin by simply opening a file. It is never too late to start - or restart - the process of approaching victims' survivors. Even if there was a failed attempt long ago, think about what new evidence has emerged to change the snapshot of the case, or what life experiences may have caused a once-angry survivor to be more forgiving. To overcome fear and avoidance, we must start somewhere, and the time to start is now. Educating Ourselves The first step in educating ourselves is simply to develop a sensitivity toward the survivors of homicide victims generally. I keep a file of newspaper reports about survivors, with headlines like these: "Not all victims seek death penalty,"1 "Victim's kin stand on both sides of this bitter divide,"2 and "An open letter to the gubernatorial candidates from the father of an Oklahoma City bombing victim."3 There is such great media interest in victims and survivors that the press is a constant source of informative material in this area. We also need to draw on our own experience to develop some understanding of the emotions which are at work. Some of us will be blessed with lives untouched by homicide and suicide in our immediate family and circle of friends, but many of us have direct experience which has etched into memory the pain and horror of violent death. I lost a friend to homicide 20 years ago, but I cannot forget the moment I opened the paper and read the headline announcing the murder. When my mother died a natural death in her 80s, I picked up a voicemail message to call the medical examiner in her city. I knew immediately that a medical examiner's message meant she was dead. From decades of experience in homicide cases, I knew also that medical examiners handle all unattended deaths in most large cities, so their involvement did not automatically signal foul play. But for 15 minutes I tried to learn what had happened, speaking to anonymous coroner's clerks in a distant city, waiting on hold, with my mind racing through all the possibilities. It was a day after my late father's birthday. Had my mother become despondent and taken her own life? I was a mix of adrenalin - heightening the pain of loss - and sadness, guilt, confusion, utter shock. After 15 minutes, they found the file, told me details, and more ordinary grief set in. But from this intense memory, I can begin to imagine what it is like for those who call the medical examiner to find that a loved one has died violently at the hands of a stranger. Our clients' families often have much to teach us about surviving homicidal loss. In one recent New York case, the client had lost his uncle, his father's girlfriend, his sister, his stepsister, and four cousins to homicide. This family is a laboratory of loss, a demonstration of how violence affects loved ones over time. In capital cases, especially in the inner city, it is the norm for mitigation witnesses to include people who have lost family members to violent death. We can also learn about homicide survivors from the organizations which provide support and advocate reconciliation. While some survivors' organizations have punitive agendas and heavy prosecutorial involvement (e.g., Parents of Murdered Children and VOCAL),4 there are others like Murder Victims' Families for Reconciliation and the Religious Organizing Against the Death Penalty Project (under the auspices of the American Friends Service Committee in Philadelphia) where the agenda is quite different.5 It is important to remind ourselves that homicide is largely an intraracial phenomenon and is a leading cause of death for young African-American males. The survivors of many homicide victims are poor people of color - not the middle-class white folks who seem to monopolize victim status in our mass media. Who Are the Victim's Survivors? What Do They Experience? Many different people have special ties of kinship with the person who was killed in any case. The survivors include not just family members, but close friends, neighbors, co-workers, and community members. They come from all walks of life. They are a cross-section of the community, with diverse views on all subjects, including religion and politics. They hold differing views about the death penalty, and experience has shown that these views tend to be stable over time and in spite of life events. Homicide is blind to ideology, taking lives indiscriminately. It also brings few ideological conversions: death-penalty opponents generally maintain their conviction even when a loved one is victimized. The spectrum of views about the death penalty in our society is often mirrored within the extended families of homicide victims. The most vocal survivor may be advocating capital punishment even when a majority of family members oppose it. The degree of anger felt by a surviving family member does not necessarily correlate with a desire for capital vengeance. The angriest, the most aggrieved, may feel the most profound sense of loss without translating that feeling into a retributive desire to kill our client. Just as many victims are randomly stricken, survivors are thrust into their role in the case completely accidentally. Although some may be witnesses, most are not. They have no connection to the crime but their kinship with the deceased victim. Nothing in life prepares survivors for the day when a loved one is murdered.6 Most people live with illusions of immortality, both for themselves and for their loved ones, at least until old age. The death of a younger person - especially a son or daughter - is always a shock. But homicide involves more than death. It is not merely that a healthy, young life has been cut short, but that the death also involves an act of wanton human cruelty.7 The sorrow and loss of survivors are compounded by acute feelings of injustice, distrust, and helplessness. The most common response to this trauma is crisis. Long-term effects will depend on the intensity of the shock, its suddenness, whether the event was anticipated, the survivor's ability to understand the event, and the survivor's state of mind and relationship to the victim prior to the event. There will be a long emotional struggle to reconstruct a devastated life. After the initial shock of homicidal loss come confusion and denial. There is an adrenalin rush of sensory reactions, followed by collapse - stunned affect, physical exhaustion. In the period of turmoil and numbness, there is a wide range of individual reactions, including horror about what the victim suffered; a need to know every detail about what happened; panic attacks and other outbursts of intense emotions; restlessness and insomnia; flashbacks to memories (e.g., the moment when the news was received or the visit to the morgue to identify the body or even an imagined reconstruction of what occurred at the crime scene); rage at the perpetrator, mingled with fear; survivor guilt, the gnawing obsession over something done or not done that might have averted the tragedy; hostility toward everyone who cannot bring the loved one back to life; hopelessness, helplessness, suicidality; mental and physical distress; and, finally, sheer fatigue. The moment of death notification is forever frozen in the survivors' memory, returning intrusively and painfully. Life goes on, but that means that life's other problems don't go away because a homicide occurred. If anything, they get worse. Survivors tend to blame everything on the homicide, including divorce, illness, job stress, unemployment. Moses Stewart, whose son Yusuf Hawkins was chased and killed by a mob in a racial confrontation in the Bensonhurst section of Brooklyn, recently described meeting with the convicted killer after his release from Attica state prison: I began by letting him know that not only did he help kill Yusuf, but he also destroyed the rest of my family. What do I mean? He made my younger son, Amir, 22, move out of the state of New York because he did not want to live here anymore. My older son, Freddie, 26, is still trying to come to grips with what happened that night. And Yusuf's mother, Diane Hawkins, and myself have since gone separate ways. I don't think [the convicted killer] really knows the impact a death - particularly a death by murder - has on a family. It tore us apart.8 The reactions of others often exacerbate the survivors' stress. Some offer misguided compassion, angering survivors with the hollow assurance that the victim is "better off" or has gone to a better place. Others blame the victim. Most simply avoid survivors. Sam Reese Sheppard, whose father was falsely accused of murdering his mother, has written poignantly, "Often the families of the victim and the offender receive similar treatment from society. People do not want to be around them because they do not want to be exposed to their deep pain."9 Survivors become pariahs in their own communities - sometimes exploited, more often just ignored. Criminal Justice: The Ultimate Stressor The criminal justice system can be the ultimate stressor for survivors. The polarization of the adversary system seizes survivors and draws them into the competition. They are induced to feel outcome anxiety. Will the killer "get away with it?" The degree of guilt and the severity of punishment are equated with a calibration of the victim's worth. As Brent Staples has pointed out, "Until quite recently, bereavement brought a period of reflection. But over the past decade, the solemn activity of mourning has become a raucous and public blood sport. In the television age, anguish only seems real when broadcast over the airwaves. . . . The bereaved now hold regular press conferences, as did Ronald Goldman's father almost every day at the O. J. Simpson trial. Elsewhere, family members leave the courtroom with high fives and fists in the air, as though sentencing someone to death were no more serious than a football game."10 The criminal justice process further objectifies and dehumanizes the loved one in defining her only as "the victim," a corpse, a decedent, an autopsied case measured in wound paths and described in quantified trauma. Indeed, the victim is insistently coupled with the live, human defendant. She is ineluctably identified to the world as belonging to this defendant; she ishis victim. If survivors are temporarily excluded from the courtroom because they are testifying to facts other than victim impact, they experience ultimate isolation at their most vulnerable time - and of course blame the defense. If they are present, they are invariably shocked by the insensitivity of the legal discourse, particularly outside the presence of jurors. For example, imagine a survivor's horrified reaction to an academic debate between dueling forensic pathologists over whether the victim was already dead when the sodomy occurred. Grief is suspended during the trial. Indeed, in capital cases, post-trial proceedings often prolong the suspension. Executions, far from bringing closure, may release a new surge of feelings, the long-delayed beginning of grieving, rather than the end of the process. Trials bring sustained and heightened anxiety. Why Approach Survivors? Practical Goals The surviving family members, loved ones, and friends of the victims of capital crimes often play a key role in determining whether our client lives or dies. Early contact may be the key to persuading prosecutors not to pursue the death penalty in a given case - or to negotiating a non-capital disposition. Survivors are often the only people who can provide political cover for a prosecutor who chooses not to seek the death penalty in an eligible case, or who agrees to accept a plea. Some prosecutors will go so far as to shift the political blame for these decisions onto the victim's family, telling the press that they would have preferred a capital trial, but for the sake of closure for the victim's family they have reluctantly settled the case. SincePayne v. Tennessee,11 victim-impact testimony has directly affected capital juries, even though prosecutors are still not permitted to elicit testimony from victim-impact witnesses that they want the defendant executed.12 Defense practitioner Michael Ogul has recently argued that the defense should be permitted to present the testimony of a victim-impact witness who has a relationship with the defendant and doesnot want him to be sentenced to death,13 based on the California Supreme Court's holding inPeople v. Ochoa ("defendant may offer evidence that he or she is loved by family members and others, and that these individuals want him to live . . . because it constitutes indirect evidence of the defendant's character").14 Even after years of post-trial capital litigation, it is never too late to enlist the support of victims' survivors in clemency applications. Joseph Patrick Payne, for example, was spared just a few hours before his scheduled execution when Virginia Governor George Allen commuted his sentence to life in prison. Post-conviction counsel had made a formidable showing of actual innocence, but when the victim's mother, Reba Inez Dunford, expressed her doubts about Payne's guilt, the governor listened.15 Our approach to the survivors must be open ended. Whatever specific goals we may have, we must be prepared to respond to the questions and concerns that the survivors have and to listen reflectively, echoing their own language, to find a path to understanding their needs. In advance of approaching them, we need to do everything possible to sensitize ourselves to their plight, especially their overwhelming sense of isolation. Finally, as Neal Walker has observed, we have to be sincerely motivated to build the bridge to the victim community:
In addition to absorbing the anger (and thereby directing it away from our clients), we are attempting to discern the wants and needs of the victims' loved ones. Do they just want an acknowledgment of what happened? An explanation of why the crime occurred? Do they want recognition of the dignity and worth of the decedent? Do they value dignity more than revenge? We must familiarize ourselves with the available resources that can help the survivors through their ordeal, rather than permitting prosecutors to monopolize such referrals. We need to know what support is available through local churches, where to findpro bono counseling and therapy services, and how to get help from the legal and medical professions. Part of our mission in contacting the survivors is simply to explain the capital criminal justice process to them, and to correct misunderstandings created by press and prosecutors. Educating them with accurate information about the process also serves to highlight the finality which is only available by means of a negotiated settlement. Years of trials, appeals, and potential retrials can mean endless retraumatization. Pleas can truly bring closure - including potentially the return of precious personal effects otherwise held as evidence or disclosure of confidential information known only to the client. Contact with survivors also provides an opportunity to communicate something about our client and even, when appropriate, something remorseful from our client. As Sean O'Brien has advised, "Share information about your client. There is much you cannot tell the family of the victim because of ethical and strategic considerations. However, any information that you can share can potentially humanize your client in their eyes. It may also help them to deal with their own feelings of anger and guilt over the loss of their loved one."17 It is important to have a realistic set of objectives in reaching out to the survivors of homicide victims. Although persuading them to oppose your client's execution or to support a plea is the highest accomplishment, lesser objectives are also important; one key goal is simply to keep a dialogue open. Venting rage away from the courthouse - and the eyes and ears of jurors - facilitates a fairer trial. Sharing your humanity with victims' family members decreases the polarization of the adversary system and helps to level the playing field. How Do We Begin? While acknowledging the value of early contact, we should also recognize that significant contact with substantive objectives should only occur after painstaking, meticulous background investigation. We should show polite respect at every early opportunity, such as at the courthouse. But we should initiate more formal contact only when we have learned as much as possible about who the victims' loved ones are. It is often possible to reconstruct the victim's last hours or days from police reports and media coverage. A chronology of those activities may be a helpful tool in beginning to understand the victim's world. From discovery documents and public records, we should identify as many names as possible from among family and loved ones. The tools of life-history research can be used here also. A genogram may help us to visualize the connections of family members who come to court or speak to the media. Obituaries and funeral announcements are a rich source of background information about victims' families. They will often identify religious affiliations and specific members of the clergy who have ministered spiritually to the family in the time of grief. Charitable donations solicited in memory of victims may identify the causes they believed in. Public records reveal all kinds of information - political affiliations from voter rolls, ties to the community from property records, contact with the criminal justice system from court files. There should be no contact with known associates of the survivors without an assessment of the risks of misunderstanding. A funeral director or a florist may have a wealth of information about the victim's family, but it could be extremely harmful if the family learned that the defendant's defense team was asking questions about them. Contact with a member of the clergy, on the other hand, may yield valuable information and open a line of communication to specific surviving family members. Other community professionals - teachers, lawyers, or social workers, for example - may also be both sources of information and potential mediators. Once substantive contact is contemplated, careful thought must be given to finding a neutral venue which will make the survivors feel safe and in control of the encounter. A house of worship may be appropriate. The bereaved survivors' own home may work best. Let them feel that they control the time, place, and duration of each meeting. Contact through third parties is often beneficial. Intermediaries may be clergy, neighbors, co-workers, or community activists. If they have found forgiveness, the surviving family members of other homicide victims can be powerful allies, since they truly empathize and understand the unique needs and pain resulting from this form of trauma. We need to identify such individuals by networking with other capital counsel, or reaching out to survivor groups18before we take our next capital case. Our ability to speak sincerely and credibly about reconciliation and closure will be enhanced immensely if we have taken this step outside the context and pressures of our capital caseload. Some lawyers prefer to contact survivors directly. A few write handwritten letters.19 Others just drop in.20 In any event, great care must be paid to choosing the emissary from the defense who is best able to connect emotionally with the survivors. If there are multiple surviving loved ones, different emissaries may be appropriate for different family members. Age, gender, education, culture, religion, and many other factors may be relevant in choosing the team members who can build a bridge to the survivors. The first substantive meeting with victims' survivors has one main goal: not to increase their pain. There can be no agenda other than to build trust through listening and understanding. Find out what the survivors want, what matters to them, and what questions they have. Don't try to accomplish too much. Have an exit strategy in case things blow up and turn into an explosive confrontation. Don't engage in the confrontation, but excuse yourself politely, regroup, and find another way to renew the dialogue. No matter what happens in the first encounter, follow up and follow through. Keep the small promises that are made (e.g., the referral numbers forpro bono counseling or legal services or other social service agencies), keep up the contact, and never miss an opportunity to renew or rebuild the relationship. What We Can Give Every case is different, but there is always something that we can give to the victim's survivors. We can end their isolation even as we end their imagined demonization of us and the client. We can give them someone to talk to, even as we struggle to find words to express ourselves to them. We can attempt to give them dignity and understanding. Sometimes we can offer concrete things, such as return of property (a vehicle seized in evidence or a memento of less practical value but more personal significance). We can explain the protection and punishment that result from a life verdict, or the finality that a negotiated disposition including appeal waiver brings, in contrast to protracted litigation in the event of a death sentence. In some instances, we can convey the client's remorse, if he has accepted responsibility, or the condolences of his family. Sometimes we can explain the criminal justice process, or the client's culture, or the client's disabilities and limitations which have resulted in demeanors which are misunderstood or mischaracterized in the media. Sometimes we serve our clients just by being there as surrogates for them. Sometimes we convey just our own sorrow for their loss. Beyond Vengeance Our attempts to build this bridge to the survivors of our clients' crimes not only help to level the playing field of litigation, but also to illuminate the societal questions and the public policy issues raised by the epidemic of violence that distinguishes the United States from other industrialized nations, and connects our country instead with nations such as South Africa and Cambodia which are struggling to recover from the terrors of war, civil unrest, and racial strife. At the close of this millennium, as individuals and as societies, we face these profound questions: How do we move on after suffering violent loss? Can there be reconciliation? Should there be? How do we heal, grieve, mourn? How do we put this pain behind us? Working with the victim's surviving family in death penalty cases is but one small part of this exploration, but the lessons from this experience, one case at a time, will be part of our legacy to history from this era of capital punishment. Notes 1. Tim Chavez,Not All Victims Seek Death Penalty,Utica Observer-Dispatch, May 19, 1997, p. 10-A (reporting on Bill Pelke of Portage, Indiana, a founder of Murder Victims' Families for Reconciliation). 2. Gersh Kuntzman, Victim's Kin Stand on Both Sides of this Bitter Divide,New York Post, February 2, 1998, p. 3 (reporting on impending execution of Karla Faye Tucker in Texas). 3. Bud Welch,An Open Letter to the Gubernatorial Candidates from the Father of an Oklahoma City Bombing Victim,The Champion, v. xxii, n.6 (July 1998), p. 9. 4. In one recent case, Nancy Ruhe-Munch, executive director of Parents of Murdered Children in Cincinnati told the press that the mourning period can last "forever" when murder is involved. "As long as the murderer is still alive, the grieving process never ends," she stated. See Judy Manzer,James Remembered As Kind, Generous Man,Utica Observer Dispatch, March 29, 1999, pp. 1A and 3A, at 1A. 5. See, for example, the websites of Murder Victims' Families for Reconciliation (http://www.quaker.org/fcadp/mvfr.html), which has more than 5000 members, and Religious Organizing Against the Death Penalty Project (www.envisioning.org) 6. This summary draws heavily uponSurvivors of Homicide Victims, in National Association for Victim Assistance (NOVA),Network Information Bulletin, v. 2, n.3 (October 1985), pp. 1-10. See also Morton Bard, Harriet Arnone, and David Nemiroff, "Homicide Survivor-Victims: Psychological Theory and Legal Policy," paper presented at the Biennial Convention of the American Psychology-Law Society (October 1975); Ann Wolbert Burgess,Family Reaction to Homicide,American Journal of Orthopsychiatry(April 1975); Katherine Fair Donnelly,Recovering from the Loss of a Child(New York: Macmillan Publishing Co., 1982); Polly Doyle,Grief Counseling and Sudden Death: A Manual and Guide(Springfield, Illinois: Charles C. Thomas, 1980); and Doug Magee,What Murder Leaves Behind(New York: Dodd, Mead & Co., 1983). 7. It should be noted that the American Psychiatric Association'sDiagnostic and Statistical Manual of Mental Disorders, fourth edition (Washington, D.C.: American Psychiatric Association, 1994), specifically recognizes that Post-Traumatic Stress Disorder "may be especially severe or long lasting when the stressor is of human design" (p. 424), thus distinguishing homicide from other stressful forms of sudden death. 8. Moses Stewart,The Day I Met My Son's Killer,New York Daily News, February 3, 1999, p. 31. 9. Sam Reese Sheppard, "The hard work of reconciliation,"Turning Wheel (winter 1999), pp. 33-34, at p. 34. With Cynthia Cooper, Sheppard is the author ofMockery of Justice, a book about his mother's murder and his father's wrongful conviction. A popular television show and film,The Fugitive, were based on this case. 10. Brent Staples, Editorial Observer,When Grieving 'Victims' Can Sway the Courts,New York Times, September 22, 1997, p. A26. Staples concludes, "My brother's murder continues to be painful, but it invests me with no special insights and should bring no special entitlements. I avoided the murder trial - as did my parents - and would suggest that other survivors consider doing the same." 11. 501 U.S. 808, 111 S. Ct. 2597 (1991). 12.See Booth v. Maryland, 482 U.S. 496, 107 S. Ct. 2529 (1987), at 503, and Payne v. Tennessee,supra, at 883. 13. Michael Ogul, "Dealing with Victim Impact Evidence," California Attorneys for Criminal Justice (CACJ),Forum, v. 26, n. 1 (February 1999), pp. 31-36, at p. 36. 14. 19 Cal.4th 353 (1998), at 456. 15. SeeSupport of Survivors and Conservatives Yields Clemency, National Legal Aid and Defender Association,Capital Report, n.51 (January/February 1997), pp. 1, 8. 16. Neal Walker,Victims, in Michael N. Burt, editor,California Death Penalty Defense Manual, 1993 edition (Culver City and Sacramento, Calif.: California Attorneys for Criminal Justice and California Public Defenders Association, 1993), v. II,Mitigation Workbook, pp. 533-535, at pp. 533-534. 17. Sean O'Brien and Brenda Tripp,Contacting the Families of Homicide Victims, in Michael N. Burt, editor,California Death Penalty Defense Manual, op. cit., v. II,Mitigation Workbook, 1997 Supplement, Victim-Related Factors, pp. 1-2. 18. See Murder Victims' Families for Reconciliation and Religious Organizing Against the Death Penalty Project,supra, n. 5. 19. See Kevin McNally,Letter from Defender to Victim, in Michael N. Burt, ed.,California Death Penalty Defense Manual, op. cit., pp. 537. 20. See Keith Rohman,The Hardest Cold Call: Interviewing the Victim,in Michael N. Burt, ed.,California Death Penalty Defense Manual, op. cit., pp. 543-544.
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.or |
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