Moussaoui Jury Deliberates Another Day

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Jurors in Alexandria, Va., spent another day deliberating the fate of Zacarias Moussaoui, deciding whether the al-Qaida conspirator would be put to death. Robert Siegel talks with Professor Janice Nadler of Northwestern University Law School about victim impact statements in a capital case.

ROBERT SIEGEL, host:

Across the Potomac from the Supreme Court, jurors in Alexandria, Virginia spent another day deliberating the fate of Zacarias Moussaoui. Should he be put to death, or sentenced to life in prison? Moussaoui confessed a year ago to six conspiracy counts, claiming that he was planning to fly a plane into the White House. The jury then concluded that, as the prosecution argued, Moussaoui is eligible for the death penalty because his lies to FBI agents resulted in a lack of government action that, had it been taken, would have averted the commission of murder on September 11th.

Since then, jurors have heard from several dozen victims and victims' relatives, a minority describing their efforts at reconciliation. The jurors are weighing aggravating and mitigating circumstances, the calculus of the sentencing phase of a trial.

Victim impact statements in death penalty cases are an interesting extension of criminal justice. The Supreme Court ruled them out in 1987 and let them back in in 1991. Janice Nadler, a research fellow at the American Bar Foundation in Chicago, has researched this process and written about it.

And Professor Nadler, why do we have victim impact statements in a capital case, after the fact of a capital crime has been established?

Ms. JANICE NADLER (Northwestern University Law School): Well, victim impact statements make sense in the sense that it's sensible for people to base their judgments about punishment on the harm that was caused by crime. And so victim impact testimony is once source of information for assessing the harm of the crime.

SIEGEL: You actually conducted a study to see whether people hypothetically would sentence someone to more years in prison if they believed the victim to be suffering more or less.

Ms. NADLER: That's correct. We asked community members to read a vignette about a crime and then we varied the extent to which the victim suffered emotionally as a result of the crime. And what we found was that when the victim suffered more severe emotional harm, our mock jurors were more sympathetic toward that victim when emotion was more severe, saw the crime as more serious and sentenced the defendant to more time in prison.

SIEGEL: But obviously, there's a problem implied by that, which is that if a criminal happens to choose someone whose emotional constitution is rock solid to attack, they might get a lesser sentence than if they choose someone who's susceptible to suffering a great deal more after the same attack.

Ms. NADLER: That is correct. Victim impact testimony certainly conveys a nature about the harm of the crime, which is certainly relevant to punishment, but it can convey other information as well, which is arguably not so relevant to punishment. For example, the extent to which a victim happens to be emotionally vulnerable or emotionally robust. It can reveal the extent to which the victim is able to articulately describe his or her emotional experiences as a result of the crime, which itself could depend on factors such as education levels, language ability and finally, victim impact statements reveal the extent to which the victim is perceived by the jury as a valued member of society.

SIEGEL: I assume that that last problem is addressed in a law review article that you cited. It has a wonderful title. I haven't read it. It's Thou Shalt Not Kill Any Nice People. And the problem would seem to be if somebody murders the most idle, vile, misanthropic guy in town, it's still murder, just as much so if you murder the coach of the girls' basketball team, who organizes the blood drive for the neighborhood.

NADLER: That's correct. And so, in theory, there's a sense in which the punishment for those crimes should be the same regardless of who the victim is because in a sense the harm is the same.

SIEGEL: Reporters describe the jurors in the Moussaoui sentencing phase of the trial being teary eyed as they heard accounts of what happened on 9/11. If there's any crime that any American knows a lot about it would be the killings on 9/11. You didn't have to acquaint people for the first time that many people died that day. Is there anything to that beyond simply the emotional manipulation of the jurors?

Ms. NADLER: Well it's true that everybody knows about 9/11 and what happened on 9/11. The argument in favor of allowing victim impact testimony in a trial concerning the events of 9/11 is that it makes some sense to allow victims to come into the courtroom and tell their stories so that jurors get a real sense of the extent of harm from the terrorist attacks of 9/11 which they might not be able to imagine without the victims in the courtroom.

It also allows the jurors to see the faces of the real people who were affected by the terrorism of 9/11 as opposed to just having to imagine them. So I think there is so reason to allow victim impact testimony in criminal trials generally, even in trials where jurors are familiar with the harm involved. But there's another side too. Victim impact testimony in criminal trials generally threatens to bring in information that goes above and beyond the kind of harm we want jurors to consider when they decide about the appropriate punishment in the case. Information about the victim's identity in terms of their esteem in the community, their ability to articulate the harm that they suffered, the extent to which they're emotionally vulnerable.

SIEGEL: Well Janice Nadler, thank you very much for talking with us.

Ms. NADLER: Thank you very much, my pleasure.

SIEGEL: Professor Janice Nadler of Northwestern University Law School, also a research fellow at the American Bar Foundation in Chicago.

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