Book Reviews

Book Review 4 - April, 2012

The Mercury Endeavor, LLC provides book reviews that defense teams will find applicable, insightful, and reflective for their practices. Book reviews are published to this website periodically. Viewers may quote from this webpage but must properly attribute and cite the work to Dr. Tim Jon Semmerling or Stephen M. O'Connor, The Mercury Endeavor, LLC, and the collateral sources cited herein:

Tim Jon Semmerling, PhD, JD

BOOK REVIEW: Sundby, Scott E. A Life and Death Decision: A Jury Weighs the Death Penalty. New York: Palgrave MacMillan, 2005. 220 pages. ISBN: 9780230600638.

Death-penalty defense teams ensure their legal effectiveness with the courts, in part, by following the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases.1 Just the same, defense teams must also find ways to improve their influential effectiveness with their juries during trials. In order to do so, they should develop their knowledge and consideration of juries and anticipate how jurors are likely to deliberate. They should also examine how they can best help their jurors to arrive at life-verdicts.

Scott E. Sundby’s book, A Life and Death Decision: A Jury Weighs the Death Penalty, provides defense teams with a framework to boost their influential effectiveness. Sundby can help defense teams envisage and understand jurors’ concerns and beliefs, the dynamics of deliberation in the jury room, and the causatum of serving as death-penalty jurors. He narrates the real-life experiences of a particular Californian jury, the jury of People v. Lane, and gives defense teams a memorable archetype to ponder as they wonder what it will take to persuade their own jurors to return life-verdicts. Although People v. Lane was only one jury in a “trial of a nobody-defendant…[n]o glamorous victim…[n]o high-profile prosecutorial team or publicity seeking defense attorneys,”2 and any slight change in its jury members could have rendered a wholly different result, Sundby assures his readers that this jury was fairly representative of 41 Californian juries he studied as part of his work with the Capital Jury Project.3

Sundby points out that when juries are convened for death-penalty cases, the prosecution and defense teams are asking the jurors to draw on their moralities, emotions, outrages, and senses of mercy to determine sentence.4 Prosecution teams demand the ultimate sentence because of the aggravating circumstances. Defense teams call for jurors to season justice with the facts of mitigation. Defense attorneys must present mitigation persuasively enough so that jurors can (1) glimpse the defendants’ humanities and (2) grasp the factors that are beyond the defendants’ control and thereby shaped their lives. But just as much as the defendants’ have their life experiences, so do jurors, and jurors make decisions, sometimes serendipitously, with their experiences in mind.

As archetype, People v. Lane demonstrates that jurors have concerns and beliefs, which defense teams can address and ameliorate in order to acquire their jurors’ ears. After finding Steven Lane, a repeatedly convicted robber, guilty of the felony-murder of Carlos Castillo, a convenience store clerk, the jury of People v. Lane took their life-death decision very seriously.5 Generally, the jury felt responsible for ensuring that Lane would never be allowed to cause further harm, for weighing his actions and life story in light of the crime, and for imagining some way that he could be a citizen once again. Moreover, they searched for some sign that he was sorry for his crime. Individually, some jurors were angry with Lane for this crime and his past crimes, and they loathed him. Some personally feared him and were afraid that he may one day get out of prison, through parole or escape, and take revenge on them. Other jurors strongly believed that people act with free-will, even under adverse circumstances, and they saw Lane as willfully making the wrong choices and now needing to take responsibility. And still, at least one juror strained to hear how Lane ended up on his pathway of crime, suspecting that he did not just stumble onto it. She struggled to see signs of redemption and to glimpse what signs of humanity in him were worth saving. In the end, the jurors in People v. Lane handed down a death sentence in part because of the defense team’s inability to tailor the mitigation in order to assuage their concerns, abate negative beliefs, or fortify positive inquiries.

The failure to persuade the jury of People v. Lane demonstrates some major pitfalls and remedies for defense teams. It demonstrates the need for a coherent story and theory of the case throughout the guilt-innocence and sentencing phases. This can be accomplished through frontloading or foreshadowing mitigation in the earlier phase. Since Lane’s defense team failed to do this, mitigation revealed in sentencing appeared to the jurors as Lane just trying to wiggle out of responsibility, making excuses, and blaming others after being convicted. Likewise, Lane’s attorneys and expert witnesses lost credibility and looked like con-men who were trying to manipulate the jurors in the end. The archetype also demonstrates that jurors, who are worried about future dangerousness and angry about crime, do not always understand the meaning of life-sentences without the opportunity for parole (LWOP). These jurors wanted to make a decision knowing that Lane would never be released, that prison time would be more punishing than death, and that a death verdict would actually be carried out. Lane’s prior crimes and releases, along with popular tales of murderers eventually beating the system, made it appear to them that he could gain freedom legally, even after receiving LWOP. They questioned whether a death verdict would ever end Lane’s life because of the appeal process. For these jurors, life did not mean life, and death did not mean death, but handing down a death verdict just seemed safer. Therefore, Sundby encourages attorneys to take the time to educate the jurors and dispel myths about prison, death row, and parole.

One of Sundby’s more interesting findings in his book is the defense error of trying to make jurors identify too strongly with defendants as opposed to showing how defendants’ lives differ from their own. One juror in People v. Lane was able to match the similarities of Lane’s life with his own. While Lane’s youth resonated with the juror, the juror could not see why Lane, who seemed to have come to similar forks in life’s road, could not make the choices away from crime as he himself had done. With this intense identification, this juror became Lane’s harshest critic saying, “Yeah, well, I went through that and didn’t end up a killer.”6 Sundby relates that it is better to demonstrate how jurors and defendants are not the same person and to have jurors connect with the defendants’ family members instead:

If the juror identifies not with the defendant, but primarily with someone in the defendant’s family, such as the mother or the father, the juror’s identification sometimes swings them toward sympathizing with the defendant’s case for life…[T]he reaction often is a shared sense of helplessness with the defendant’s family members who had tried so hard to keep the defendant from slipping into a life of crime. These jurors often express the sense of how easy it is for a teenager to go astray in today’s world despite a parent’s best effort.7

Sundby believes that defense teams can learn much about jurors’ concerns and beliefs, well before sentencing and while in the voir-dire process. In voir dire, jurors can clue defense teams in on the tools they need to deliberate with fairness and justice. Certain facts are likely to swing juries toward life or death, and those facts can only be identified when defense teams listen to the individual juror's stories. After listening, some facts that seemed essential to a defense theory may no longer be necessary, and other facts that had been sidelined in preparation may need spotlight.

The book is particularly strong in providing defense teams with insider views of jury deliberations. Sundby identifies role-types (problem solvers, sentencing fundamentalists, bullies, swing voters, hope jurors, and holdouts) that emerge behind those closed, jury-room doors to explain why friendships and alliances develop and how frustration incubates into yelling matches, table banging, insult trading, tears, and even posturing for fist fights. And he puts them all within the context of social phenomena that occur within groups, including different and emotionally-based evaluations of the same evidence, individual confirmation of what the group adamantly perceives even if the group’s perception is plainly in error, and skewed verdicts developing from race-different defendants in comparison to victims and jurors. Additionally, he cites the paradox of jurors wanting to show they are adequately intelligent and capable enough to bring about informed justice, but, at the same time, avoiding requests for clarifications of instructions or for the tools they need to avoid confusion.

In People v. Lane, the jury initially leaned toward a death sentence, and the deliberation for justice became more of a quest to find ways to turn the life-leaning jurors into conformers rather than to consider Lane’s life. One holdout clung to her sympathies, empathies, and sense of morality. Others told her she was being too sympathetic in comparison to the evidence and was not following the law, when in fact she was. They questioned whether she had been truthful about her ability to give a death sentence. They shamed her into believing that she was now hijacking their verdict and the victim’s justice. Meanwhile, the pressure to conform made her begin to wonder what was wrong with her when others could seemingly see things so clearly. Under such stress, she and other jurors misread the jury instructions and never asked for clarification. After four days of onslaught, the beleaguered holdout acquiesced. Lest readers believe that the phenomena work only in one direction, when death-leaning jurors are in the lead, Sundby gives a shorter version of deliberations in another trial where life-leaning jurors acted similarly with their power. As such, he concludes that deliberations are equally as grueling in death-penalty juries leaning toward death as with ones leaning toward life, and being the holdout hero like Henry Fonda in Twelve Angry Men8 is a much more difficult role to maintain as we would like to fantasize. Therefore, Sundby illustrates how essential it is that defense teams tell persuasive stories, connect the mitigation dots in closings in order to provide their jurors with fortified reasoning, empower jurors with the convincing vocabulary so that the life-leaning jurors can argue and vote with confidence, and ensure that jurors understand the instructions.

But the most salient point of A Life and Death Decision is awareness of the causatum of death-penalty trials on jurors. Sundby reminds his readers that jurors are human beings, and the sentences they must decide greatly alter their lives, too. While serving on juries, they hear stories about the darker side of humanity, see gruesome autopsy photos, and learn of hardships that some must endure. They also learn aspects about themselves and their own problems, including things they do not want to know or recognize. Meanwhile, they are forbidden to talk about the case with anyone during the trial, including those they normally lean on during emotional strife. “A significant majority (60 percent),” Sundby reports, “stated that they found the ‘experience emotionally upsetting,’ occasionally adding comments like ‘It was the most agonizing situation of my life’ or ‘It was devastating.’ Over a third (35 percent) reported that they had trouble sleeping or lost their appetite during trial.”9 Furthermore, when trials are over, some jurors continue to struggle with their decisions. Hence, Sundby’s call is well taken: If juries bear the tremendous demands of implementing the death penalty, then the debate over whether the death penalty is right or wrong should include the effects on the jurors as well as on the victims and the defendants.

Overall, A Life and Death Decision leaves defense teams with valuable instruction: If they can, during the trial, internalize awareness about jurors concerns and beliefs while developing empathy for the deliberation process and the emotional effects of their service, then defense teams can address jurors from a more sincere, respectful, and anticipatory stance. From this stance, defense teams are likely to diminish the appearance of manipulation, argue more convincingly, and improve their influential effectiveness.

1 American Bar Association, The ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (2003); see also Wiggins v. Smith, 539 U.S. 510 (2003) (declaring the ABA Guidelines as well-defined norms).

2 Scott E. Sudby, A Life and Death Decision, 5 (2005).

3 The Capital Jury Project has spawned a plethora of articles that are highly informative for defense teams. John H. Blume has created an excellent bibliography and summary of these articles and their findings. See John H. Blume, An Overview of Significant Findings from the Capital Jury Project and Other Empirical Studies of the Death Penalty Relevant to Jury Selection, Presentation of Evidence and Jury Instructions in Capital Cases, (2010).

4 Sundby’s point is similar to Judge Patrick E. Higginbotham’s view of the jury’s decision as “uniquely laden with expressions of anger and retribution and is freighted with goals of general and specific deterrence…it necessarily reflects a gut-level hunch as to what is just.” Patrick E. Higginbotham, Juries and the Death Penalty, 41 Case W. Res. 1047, 1048 (1991).

5 Adding to the archetypical qualities of People v. Lane, Sundby highlights that felony-murder accounts for more than 80% of the defendants on death row. Supra note 2 at 11.

6 Id. at 113.

7 Id. at 114.

8 Twelve Angry Men (MGM 1957).

9 Supra note 2 at 168-69.



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