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Litigating with Victim Impact Testimony: the Serendipity That Has Come from Payne V

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Litigating with Victim Impact Testimony: the Serendipity That Has Come from Payne V Cornell Law Review Volume 88 Article 9 Issue 2 January 2003 Litigating with Victim Impact Testimony: The Serendipity That Has Come from Payne v. Tennessee Richard Burr Follow this and additional works at: http://scholarship.law.cornell.edu/clr Part of the Law Commons Recommended Citation Richard Burr, Litigating with Victim Impact Testimony: The Serendipity That Has Come from Payne v. Tennessee, 88 Cornell L. Rev. 517 (2003) Available at: http://scholarship.law.cornell.edu/clr/vol88/iss2/9 This Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Review by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. LITIGATING WITH VICTIM IMPACT TESTIMONY: THE SERENDIPITY THAT HAS COME FROM PAYNE V. TENNESSEE Richard Burrt INTRODUCTION Victim impact testimony is lethal for capital defendants and often illusory for the witnesses who provide it. Although such testimony in- variably serves the prosecution's goal of procuring a death sentence, the opportunity to testify does not address most of the needs of the survivors of murder' that could be met by the criminal justice process. At best, victim impact testimony provides a momentary opportunity for survivors to give voice to their loss, be heard, and feel less isolated. At worst, victim impact testimony exploits the immense pain suffered by survivors-using the emotional reaction to their circumstances as a lever to produce a death sentence, while leaving them as onlookers in a criminal justice process whose focus is punishing the offender, not meeting the needs of survivors. In the wake of Payne v. Tennessee,2 it is virtually impossible for de- fense counsel to exclude or limit victim impact testimony. If it is ad- mitted, its emotional power will frequently produce a death sentence. Its introduction over defense objection, no matter how emotionally charged it may be and likely to result in a death sentence "based on ... caprice or emotion" rather than reason, 3 will almost never pro- vide the basis for a successful argument on appeal. These realities have pushed capital defense lawyers in new direc- tions. We have come to realize that we must overcome our instinct that survivors are unreachable and inherently joined to the prosecu- tion. Instead, we must reach out to survivors with genuine compas- sion. We must learn from survivors which of their needs can be met within the criminal justice process and do what we can, consistent with representing the interests of our clients, to ensure that those needs t Richard Burr is a partner in Burr & Welch, a private firm in Houston, Texas, de- voted to the representation of persons facing the death penalty. He formerly directed the death penalty project of the NAACP Legal Defense Fund and presently serves as a member of the Federal Death Penalty Resource Counsel project. I I use the term "survivors" or "survivors of murder" to refer to the family members and loved ones of murder victims. 2 501 U.S. 808 (1991). 3 Gardner v. Florida, 430 U.S. 349, 358 (1977). CORNELL LAW REVIEW [Vol. 88:517 are met. We must champion not only compassion for our clients, but also a greater compassion for survivors. In short, we must work for the respectful inclusion of survivors in the criminal justice process and not be complicit in their exploitation and virtual exclusion. I LITIGATING TO EXCLUDE OR CONSTRAIN VICTIM IMPACT TESTIMONY Due to the magnitude of the harm inflicted by the bombing of the Alfred P. Murrah Building in Oklahoma City,4 the trial of Timothy McVeigh presented questions about victim impact testimony that no court had ever before addressed. Moreover, the trial judge in the case, Chief Judge Richard P. Matsch of the U.S. District Court for the District of Colorado, tried mightily to be even-handed and to assure due process for McVeigh. 5 As such, it is a useful case to illustrate the adversarial process's virtual inability to filter out inflammatory emo- tion from victim impact testimony. Before the penalty phase of the trial began, McVeigh filed several motions in limine to exclude all victim impact evidence, asserting that Payne was decided erroneously, and that the admission of victim im- pact testimony in his case would inevitably lead to a violation of the Eighth Amendment and his right to a fair trial.6 In the alternative, he requested that the court limit the admission of victim impact evidence and employ certain procedural safeguards to minimize the risk that the sentencing decision in his case would be the product of emotion rather than reason.7 McVeigh's arguments to constrain victim impact testimony were based on the view that the Supreme Court in Payne did not intend to abandon the longstanding Eighth Amendment principle that "'any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.""' He found support in Payne because even though the Court held that "the Eighth Amendment 4 The April 19, 1995 bombing killed 168 people and severely injured hundreds more. Jo Thomas, McVeigh Guilty on All Counts in the Oklahoma City BombingJury to Weigh Death Penalty, N.Y. TIMES, June 3, 1997, at Al. 5 This is not to say thatJudge Matsch or any judge does otherwise in different cases. However, because Judge Matsch, counsel for McVeigh, and the government collectively viewed the magnitude of the offense as a test of the criminal justice system's ability to provide due process, all parties paid more attention to this constitutional requirement than they might have in an ordinary case. 6 See Motion for New Trial, United States v. McVeigh, 958 F. Supp. 512 (D. Colo. 1997) (No. 96-CR-68), available at 1997 WL 403417, at *83 (addressing McVeigh's motions in limine). 7 Id. 8 Payne v. Tennessee, 501 U.S. 808, 849 (1991) (Marshall, J., dissenting) (quoting Gardner v. Florida, 430 U.S. 349, 358 (1977)). 2003] LITIGATING WITH VICTIM IMPACT TESTIMONY 519 erects no per se bar"9 to the admission of victim impact testimony, it also noted that "[iln the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mecha- nism for relief."10 In his concurrence, Justice Souter reiterated this safeguard: "[T]here is a traditional guard against the inflammatory risk [of victim impact testimony], in the trial judge's authority and responsibility to control the proceedings consistently with due pro- cess, on which ground defendants may object and, if necessary, ap- peal." 1 On this basis, McVeigh argued that the Payne Court sought to strike a balance between the introduction of victim impact evidence and the defendant's Eighth Amendment rights, requiring trial courts to restrict the presentation of victim impact evidence appropriately so that the emotion inherently associated with such evidence did not overwhelm the jury's responsibility to make a reliable, individualized sentencing determination based on a full and fair consideration of the mitigating and other aggravating circumstances. Because the Payne Court gave no guidance on how to strike this balance, and because there was at that time no federal court prece- dent concerning victim impact evidence in federal capital trials, Mc- Veigh urged Judge Matsch to draw upon the state courts' experience under the Payne decision.' 2 Pointing to the cautionary principles and procedures developed in State v. Muhammad, 3 Cargle v. State,1 4 and State v. Bernard,'5 McVeigh urged Judge Matsch to take steps to mini- mize the risk that the emotion inherent in victim impact testimony would overwhelm the jury's ability to reach a sentencing decision 16 based on reason. Judge Matsch adopted the cautionary principles articulated in those cases. Outlining what he considered to be the parameters of admissible victim impact testimony in an in-chambers conference on May 30, 1997,17 Judge Matsch explained that victim impact evidence must conform with the following: [It must] be as objective as possible and it has got to be the conse- quences of the crime. And I don't believe that it can have as much 9 Id. at 827. 1o Id. at 825 (citing Darden v. Wainwright, 477 U.S. 168, 179-83 (1986)). 11 Id. at 836 (Souter, J., concurring). 12 See Motion for New Trial, United States v. McVeigh, 958 F. Supp. 512 (D. Colo. 1997) (No. 96-CR-68), available at 1997 WL 403417, at *91 (addressing McVeigh's motions in limine). '3 678 A.2d 164, 175-81 (N.J. 1996). 14 909 P.2d 806, 830 (Okla. Crim. App. 1995). 15 608 So. 2d 966, 972-73 (La. 1992). 16 See Motion for New Trial, McVeigh, 958 F. Supp. 512, available at 1997 WrL 403417, at *91. 17 See id. CORNELL LAW REVIEW [Vol. 88:517 emotional impact as some of the things that are being discussed here. [I] t can include the loss of a-people to an agency and can include the loss of a family member, what has happened, the empty chair, but not the emotional aspect of that, the grieving process, the mourning process. I don't think that's part of it. That's where I'm talking about objective, as opposed to subjective. The facts, rather than the emotional impact.18 Later, in the course of ruling on defense objections to specific aspects of victim impact evidence, the court acknowledged the inherent diffi- culties of defining the parameters of admissibility for such evidence, as well as the need to guard against the dangers of an emotion-driven sentencing determination: Payne vs.
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