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MICHEL MARTIN, host:

This is TALK OF THE NATION. I'm Michel Martin in Washington. Neal Conan is away.

Jurors in the trial of Zacarias Moussaoui are deciding whether the confessed conspirator in the September 11th attacks deserves to die. Last week, after listening to three weeks of testimony from government and defense witnesses and reviewing dozens of legal documents, the jury found Moussaoui eligible for the death penalty.

Now, though, as the trial enters this next phase, the tenor of the testimony has changed. Over two days jurors have heard emotional, often difficult, testimony from more than 20 witnesses. They've heard first-person accounts of the final moments of victims of the September 11th attacks, and they've listened to tapes of phone calls made to family members on that fateful day.

In capital punishment cases, the justice system allows for the separation of testimony. The first phase, called the guilt phase, is supposed to focus on the facts of the case and the crime and whether they support a guilty verdict, but the next phase, the penalty phase, is where passion can be freely expressed. Family members often make emotional statements on what effect the victim's death has had on them and their lives.

This is the system, but should it be?

Today on TALK OF THE NATION, we'll talk about how juries decide the death penalty. We'll hear from a juror who served on a capital murder case, plus, we'll hear different views from two legal experts, and we also want to hear from you. If you've been a juror in a death penalty case, give us a call. How did you make your decision?

If you are a lawyer who has prosecuted or defended capital murder cases, we'd like to hear what you think about how death penalties decisions are made. Our number here in Washington is 800-989-8255. That's 800-989-TALK. Our e-mail address is talk@npr.org.

And we begin in New Orleans where Kathleen Hawk Norman joins us. Ms. Hawk Norman was a jury foreperson in a capital murder trial in New Orleans 10 years ago. Welcome. Thank you for joining us.

Ms. KATHLEEN HAWK NORMAN (Former juror): Thank you.

MARTIN: Had you ever been a juror before you served on that case?

Ms. NORMAN: Yes, but never on a criminal case.

MARTIN: So you had some idea of what to expect. Did you notice a very large difference between the case you'd served on before and this capital case?

Ms. NORMAN: Yeah, there's a lot of difference. There's, I think, there's more attention in the jury qualification part of it, you know, partly because they have to make sure that the jury that is selected could impose the death penalty if that were their decision.

MARTIN: Did you find that strange?

Ms. NORMAN: Very.

MARTIN: Because?

Ms. NORMAN: Well, a lot of people were disqualified in that part of the process because either they had a moral issue with it or a religious issue with it, and so, you know, based on that, they were automatically, you know, removed from the jury pool. I think that, you know, for me at the time, I knew that as a juror, I didn't get to make new law. I, you know, my job was to apply the law as best I could, and I knew that the death penalty was the law. So while I wasn't sure where I stood on the death penalty, I knew it was the law.

MARTIN: Had you thought much about the death penalty before you served on that jury?

Ms. NORMAN: You know, not as much as I have since. I think that --

MARTIN: I mean, I guess it's one of those things where sometimes we know what we think going into a situation, but sometimes we don't know what we think until we are forced to think about it, and I was just wondering which category you fell into.

Ms. NORMAN: Yeah, I think that, you know, I had given it some thought, obviously...

(Soundbite of telephone beeps)

MARTIN: I'm sorry, I don't know what that is, and we'll try to fix it, and let's try to work through it, and we'll try to fix it. Hello?

Ms. NORMAN: Yes.

MARTIN: Kathleen? Okay, great. Well, you're here with us so, you know, you and I are all we need, so let's keep going and hopefully we'll fix it whatever that is.

Ms. NORMAN: Things are interesting in post-Katrina New Orleans. You never know what's gonna happen.

MARTIN: That may, yeah --

Ms. NORMAN: I think that I had given it some consideration, especially when you look at some of the heinous crimes that hit the headlines, and, you know, it's hard to say that person didn't forfeit their rights, you know, but I think that after having been burdened with the responsibility of deciding whether or not someone lives or dies, your views necessarily change.

MARTIN: Can you just briefly tell me about the case that you served on. You know, as briefly as you can, what were the facts? What did your jury decide and how did you feel about it later?

Ms. NORMAN: Well, the facts were that there was a robbery and a murder, and it, you know, it took place, you know, early morning hours and, you know, there was one eyewitness and really no physical evidence at all. It was a circumstantial case, and the district attorney made a big point of telling us that, you know, that was what a lot of cases were.

I think the biggest problem for us was that there wasn't any real defense. There just, the defense lawyer was woefully inadequate, and, in fact, it was his first and only capital murder case, but we didn't know that at the time, and I think that because there was no defense, this weird circular logic takes place in the jury room, and that is if no defense was presented, it must be because there was no defense, and if there was no defense, it must be because the guy is guilty.

And, you know, that's not exactly a, you know, a rational way to go about it, but it is what happened, and so it didn't take us very long. I mean, you know, we decided, I think that the sentencing phase took longer than the guilt or innocence phase, but the guilt or innocence phase, we all pretty much agreed that there wasn't anything presented to tell us that he didn't do it, and therefore we found him guilty.

MARTIN: Forgive me for asking but was there a racial aspect to this?

Ms. NORMAN: There was, although not, it was not an overt thing in the trial itself. I think that, you know, there was certainly, you know, I think that the prosecutors played on our fear and, you know, and that's a part of what happens. I think that gamesmanship is very much a part of criminal trials and certainly capital murder trials, and it's necessary to inflame passions or --

MARTIN: But was there a, I'm sorry, but was the victim white and then the defendant black or was it --

Ms. NORMAN: No, it was a black, it was a black-on-black crime.

MARTIN: It was a black-on-black crime.

Ms. NORMAN: Yes.

MARTIN: So how did he play on your fears?

Ms. NORMAN: You know, that this was a ruthless, senseless murder and, you know, for a few hundred bucks, and I think that, you know, as we deliberated, especially in the sentencing phase, you know, nobody in that room really believed that life meant life, so if we sentenced him to life, and the instructions from the judge said that if we could not unanimously agree that he deserved the death penalty that the judge would then be forced to sentence him to life. Nobody believed that that really meant life...

And there was no instruction to the jury otherwise. I mean, I've learned since that in fact it does mean life, but, you know, at that time we didn't believe that. We thought that he would be back out again, and we believed, at that point, that he was a bad guy.

MARTIN: And so what about during the sentencing phase. Were the discussions among the jury very different during the sentencing phase?

Ms. NORMAN: That was really where the only, it was a significant racial aspect, but it was really the only racial aspect, and that was, or the only overt one, and that was one of the jurors, who was also African American, made a very impassioned plea to the rest of the panel and said, you know, basically, you know, he's black, you're black. He's looking at you. He's expecting you to go easy on him. You know, we gotta hold our own accountable.

And I really didn't feel like I, you know, as a Midwestern white girl had any right, I guess, to dispute the black experience. He was talking to them from an African American place, and it was uncomfortable for me, but I didn't, you know, I didn't really have anything to answer to that, and, you know, it wasn't until we found out some time later that, in fact, he had been a police officer, and we didn't know that. You know, that changes the tone of what he had to say. It wasn't so much coming from a black perspective as it was from a law enforcement perspective, and that's very different.

MARTIN: You were the, as the jury foreperson in both phases, as I understanding it, so that means you were the person who had to stand up and announce to the court --

Ms. NORMAN: That's right.

MARTIN: -- what the decision was. What was that like?

Ms. NORMAN: It was hideous. I mean, it was so unbelievably emotional, and, in fact, I was, at the time, I remember being afraid, because you know, I stood in open court, and you give your name and your address, and then you tell them, you know, guilty, and then you stand again and say death. And, you know, it was another human being. I mean, it's a, it's a, an awful burden to put on a volunteer citizen juror.

MARTIN: You were, when you say you were afraid, what were you afraid of? Retribution? Or were you afraid of, that you were wrong?

Ms. NORMAN: No, I wasn't afraid I was wrong at the time. At the time I thought that we had done the right thing. It wasn't until, you know, a number of years later, I guess four or five years later, that I found out that, in fact, we had sentenced an innocent man to death. But that's sort of a different point.

But, you know, I was afraid, I think, of retribution. The court room was full of people. You know, from the victim's family, from the defendant's family, there was a lot of, there was a lot of people there. And, you know, and we had just been told for, you know, two and a half days that this was a brutal, senseless crime that didn't have to happen. And, you know, I'm standing there believing that the man that I've just sentenced to death is the one who committed the crime. It's frightening to stand up and, and be the voice of this man's death sentence.

MARTIN: But do you, did you walk out of there that day feeling you had done the right thing?

Ms. NORMAN: Yes.

MARTIN: So what happened to change your mind?

Ms. NORMAN: The, the post-conviction information that came out, you know, after the trial. And as I say, it was about four years later, and then I was approached by the post-conviction, a couple of lawyers from the post-conviction team that wanted to talk about the case, and, you know, it was just a normal Saturday and they rang my doorbell. And I was willing to talk because I had never, it was never really very far from my mind. It had bothered me, and I had questioned the death penalty. I had questioned what we were doing with, you know, throwing people away, and, I mean I was, I was bothered by the entire experience. And there were a number of odd things that happened. We had a bomb scare during the trial. I mean there was just a lot of weird things that happened.

And so I was really happy to talk with someone who wanted to talk about it. I think most of my family and friends were over it. And so we talked for a long time, and then they came back with basically a statement of what I said, and then they told me all the evidence that we didn't know at the time of the trial. And, you know, and at that point, I thought naively, that we'll just go back to the trial court judge and say, me as the jury foreperson, say, you know, this, if we had known this, we wouldn't have voted this way. You know, this guy should get a new trial.

And I was just stunned to find out that things like closure and, you know, procedure and all of that ranked higher than the truth. And it was very frustrating to me.

MARTIN: And it's really changed your view of the thing. Very briefly.

Ms. NORMAN Oh yeah, definitely.

MARTIN: Kathleen Hawk Norman. She was a jury foreperson in a capital murder trial in 1996. She spoke to us from her home in New Orleans. Miss Hawk Norman, thank you for speaking with us.

Ms. NORMAN: Certainly.

MARTIN: We're talking about jurors and the death penalty. Should emotional testimony, not heard in the guilt phase, be allowed in the penalty phase of a capital murder case?

We're taking your calls at 800-989-TALK. You can send us e-mail. The address is talk@npr.org.

I'm Michel Martin. It's TALK OF THE NATION from NPR News.

This is TALK OF THE NATION. I'm Michel Martin in Washington. We're talking about how jurors in capital murder cases deal with the responsibility of deciding whether someone merits the death penalty. The jury in the Zacarias Massaoui trial is hearing testimony in the penalty phase. The evidence they've heard so far includes wrenching first person accounts of what happened on 9/11.

Here is one clip of tape the jurors heard yesterday. This is Melissa Doye. She was on the 83rd floor of the South Tower of the World Trade Center talking to an emergency dispatcher.

(Soundbite of 911 call)

Emergency Dispatcher: Melissa, everybody's awake?

Ms. MELISSA DOYE: Yeah, so far.

Emergency Dispatcher: And it's very hot there, but no fire, right.

Ms. DOYE: I can't see because it's too hot.

Emergency Dispatcher: Very hot. No fire for now and no smoke, right? No smoke, right?

Ms. DOYE: Of course there's smoke!

Emergency Dispatcher: Ma'am, ma'am, you have to stay calm.

Ms. DOYE: There is smoke. I can't breathe.

Emergency Dispatcher: Okay. Now stay calm with me, okay. I understand.

Ms. DOYE: I think there is fire because it's very hot.

(End soundbite)

MARTIN: This is very difficult to hear. We listened to more of the tape in the office this morning, and we found it very emotional. But that lead us to think, is that fair? The question we're asking today is what role, if any, emotion should play when deciding whether to sentence a person to death. We'll hear two views on that, and we invite you to join the conversation. Our number here in Washington is 800-989-8255, 800-989-TALK. The e-mail address is talk@npr.org.

And joining us first is Robert Weisberg. He's a law professor and director of the Criminal Justice Center at Stanford University. He's with us from studios on their campus in California. Welcome.

Mr. ROBERT WEISBERG (Stanford University Law School): Hello, how are you?

MARTIN: Very well, thank you. Why does our justice system allow for these two phases during death penalty cases? What is the history of this practice?

Mr. WEISBERG: Up until the 1960s, in most states there was a single phase. There'd be a trial, usually for murder, although the death penalty used to be available for other crimes, such as rape and kidnapping. The jury would be asked to go back, determine whether the defendant was guilty, let us say, of first degree murder. And then it would be told that if in the course of it's jury deliberations, it determined that the defendant was so guilty, it should decide weather he should live or die.

It wasn't given any particular guidance as to how to make that second decision. It also wasn't given any real information that might be relevant to that decision, other than the general information about the guilt of the crime the jurors got from the guilt phase.

The Supreme Court in a famous decision in 1972, the Furman decision, struck down laws that met that description, the so-called unguided discretion laws, because of two classic problems. Number one, these laws seem to lead to completely unpredictable, arbitrary, capricious results. Number two, they led to, unfortunately, rather predictable results in many cases, results based on race. Although most of the statistics then, most of the statistics now, as a matter of fact, suggest that the racial bias was not about the race of the defendant so much as the race of the victim.

Anyway, the Supreme Court then encouraged states to pass a new kind of law, a kind of law that was finally approved a few years later, what can be roughly be called a guided discretion law. First the jury decides, in a conventional guilt phase, whether the defendant is guilty, let us say, of first degree murder. If and only if it so finds, and often has to find one other aggravating or death-eligibility factor, the jury will then return to the court room and there'll be a second phase, which sort of looks like a trial. But also is going to look a bit like a kind of open sentencing hearing of the kind that used to happen just before a judge in non-capital cases. But again, the jury will usually be present. And all kinds of things can come in at that point, all kinds of aggravating and mitigating circumstances and testimony. And then the jury has to go back into the jury room and decide between life and death.

MARTIN: And it's usually the same jury? Are there ever different juries for the different tasks?

Mr. WEISBERG: Virtually never.

MARTIN: And is this the norm in state penalty, state death penalty trials as well as the rare federal death penalty trial?

Mr. WEISBERG: Oh yes, because the, although the statutes vary to some extent from state to state and between the states and the federal government, they're pretty much tracking a model that was strongly encouraged if not required by the Supreme Court when it restored the death penalty's constitutionality in 1976, so it's very much a kind of core constitutionally required form.

MARTIN: The victim impact statement is a relatively recent phenomenon, isn't it?

Mr. WEISBERG: Oh, there probably always been types of testimony from victims about crimes. It's become a more visible and regularized phenomenon in recent years, but it's actually had a rather twisty history in modern death penalty law, because in 1987, in a case called Booth vs. Maryland, the Supreme Court held that is was unconstitutional to allow testimony from victims if it bore on, in effect, the worth of the life of the victim or the particular consequences of that victim's death for family members. The Supreme Court thought that was an arbitrary factor that was irrelevant to the true culpability of the defendant.

Four years later in a case called Paine vs. Tennessee, the Supreme Court flatly reversed itself and declared that these victim impact statements were legal and most states now have them.

MARTIN: I understand you don't like the use of this kind of testimony during the penalty phase. Is that accurate? And why is that?

Mr. WEISBERG: Well, I thought the court was right the first time. A lot of emotion is going to be expressed in death penalty cases anyway. First of all, even the basic facts of the murder that are laid out at the guilt phase are going to, you know, capture a lot of the emotional, you know, consequences of the killing.

And even in the penalty phase, of course, merely to talk about particular aggravating factors, including factors about the particular way the crime was done are certainly going to evoke great passion, and to some extent that's unavoidable.

The problem with victim impact statements is in some ways, well, it's a philosophical one. It suggests that a major factor in determining whether the defendant should live or die is the set of particular characteristics of the victim or the particular types of emotional, financial or other consequences that the survivors faced. To put it simply, it differentiates killings on the basis of the nature or life or character or family circumstances of the victim. Murder is murder. I think the best argument would be that if there's one constant in the equation is that, it is that all human life is equally worthwhile.

MARTIN: Let's bring another voice into the discussion. And joining us now is Joshua Marquis.

Mr. WEISBERG: I should add, simply, that what I just stated is losing position according to the Supreme Court. I have lost on that one.

MARTIN: No, no, you made that clear. But what I was asking your opinion, and I appreciate you giving it. I mean, this is all, these are all human constructs. It's not like, you know, like the rain. It's not a law of nature. So let's bring another voice into the discussion.

The next is Joshua Marquis. He's the district attorney of Clatsop County in Astoria, Oregon. As a prosecutor, he's handled several death penalty cases. Three times he's asked jurors to impose a death penalty. Joshua Marquis joins us from his office in Astoria, Oregon. Welcome.

Mr. JOSHUA MARQUIS (Clatsop County, Oregon District Attorney): Thank you. And, as you might imagine, I have a somewhat different view than your guest.

MARTIN: Absolutely, and we'd like to hear it. What value do you think victim impact statements have?

Mr. MARQUIS: The case the case he's referring to is United States case called Tennessee vs. Paine in 1991 that reversed previous law that said that basically juries in death penalty cases could not hear any victim impact evidence. And what that meant was that although a defendant could stand up and tell all the sad stories of his background and his parents could plea for his life, that basically the victims, at most, might be simply known as a single photograph. They, no dimension whatsoever.

I think the Tennessee vs. Paine case, what's interesting about that case was, it wasn't a particularly distinguished life. In fact that particular murder was the murder of a mentally retarded man who really mattered only really to his mother. And the question was, you know, did she have a right to say anything on his behalf. And the answer is, yes. And the fact is one of the reasons the death penalty exists is that there is a difference between murders.

There, there are murders, they are all terrible, but some are worse than others, and I think allowing victim impact evidence is the decent and honorable thing to do. Most courts will not allow victims' families to stand up and demand that someone be put to death or for that matter be spared. That's not what it's asking for. It's asking let's just tell a little bit about what this person was like when they were alive.

MARTIN: But wait a minute. But you know, criminal cases aren't person A versus person B. This is the state versus person, you know, defendant. So are you saying that this is just too emotionally important to victims' families to deny them this opportunity? Or that there's some social reason, that there's some purpose to society that needs to be served by allowing this? And then we're going to go to callers.

Mr. MARQUIS: Both. I mean, clearly the idea of recognizing the victim's voice is something that has become clear in the Congress, in the Supreme Court. And I know a lot of defense lawyers don't like it, but I think it's not really emotional. It's a moral and right thing to have happen.

But further, yes. I think it serves a purpose in making this extraordinarily difficult decision, which jurors have to make. They need to know the entire story, not just part of it. And part of that means what happened with the victim's survivors and what was the victim like. Not whether they were a better or worse person or more or less valuable.

MARTIN: Let's go to some callers now. Let's go to Jackson, Tennessee. And Richard. Richard, what are your thoughts?

RICHARD (Caller): Now, my thoughts about this, I formerly practiced law. Not anymore, but I was a defense attorney and I've represented several defendants who were charged with murder. I would have to say, even though I'm a defense attorney, I think the victim impact statements are a good thing because the fact the jury needs to hear that.

But insofar as emotions are concerned, you cannot separate emotions from non-emotions, because in fact, we are human beings and therefore, we are emotional whenever we say whatever it is that we do say.

So, when the family comes in and gives the emotional aspects of what goes on, I think that is fair for the jury to understand. But I also think as well, that the defense should also have the opportunity to have the defendant's family to give an emotional statement as well, so that the mitigating factors that are brought into the case will be heard by the jury as well, so they can actually determine whether or not the defendant is entitled to death or if that person should receive life in prison.

MARTIN: Richard, what about Mr. Weisberg's point that what this does is set up a contest on likeability that really is inappropriate to something so grave? It's just, do you like this person more than this other person? Is this person worthier? That it creates a sense that some lives are just more important than others, and that that's just not appropriate. What do you say to that? Briefly, if you will.

RICHARD: It doesn't create that distinction. What it is, like I said before, we are human beings. The person who is seated has a right to live. I understand that. But the person who would commit the crime like the one I defended, the person who I defended was an honor student in school that had been involved in a particular case with this young person who he killed, and it involved oral sex. And what happened, he had glanced over at the guy and told the guy that if somebody else was committing oral sex on him --

MARTIN: I'm sorry, sir. I don't think we really need to hear all the details of this.

RICHARD: Okay. But anyway, what happened is that the person who died discovered that my client was the one who was doing all these things and stated, I'm going to tell everybody what you did. And my client panicked. He had no prior record. He was an honor student in school. Everybody liked him. He panicked and by him panicking, he chose the road to kill this young man. The young man I represented was only 16 years of age and at that age, by him doing what he did was not acceptable, but he was so young.

MARTIN: And made some poor decisions. Okay, thank you, sir. I appreciate your calling. Thank you so much.

And let's go to Kalamazoo, Michigan.

And actually, I think I need to take a short break just to say that you are listening to TALK OF THE NATION from NPR News.

And let's go to Kalamazoo, Michigan, and Lynn. And Lynn, what's on your mind?

LYNN (Caller): I testified on behalf of my nephew in a capitol murder case only in the sentencing part of the trial. I was not there at all for any of the rest of the trial. Just the sentencing part. And I did it for my sister. I found the entire process barbaric.

MARTIN: How so? And let me just say, I'm very sorry for this. I'm so sorry for what you've experienced. But how did you, what did you mean by barbaric?

LYNN: It was exaggerated. The attorneys wanted my brother and me to dredge up every awful thing that had ever happened to my nephew. My nephew had not had a good life. He'd had an awful life. But it didn't excuse what he did. And I did not think that my getting up there and crying and telling them that should mitigate what he did, nor should the wife of the man who was killed be, you know, she got up and cried and carried on about how she'd never have this man's children. The man went into the woods with two prostitutes. They lured him in there. Why should she want to have his children? Why would --

The whole thing was exaggerated. It was a show. And it was barbaric.

MARTIN: Do you regret, I'm sorry, do you regret that you testified now?

LYNN: Since that's the system, no. I felt that I had to do what I could for him because of his life.

MARTIN: But did you feel --

LYNN: If it makes the difference between him getting life in prison and the death penalty, then I felt obligated to do it. But I truly thought the whole process was -- it shouldn't happen. He was found guilty, and then it's up to either the judge or the jury at that point to decide what his punishment should be. And all these sob stories and people coming in --

It was a show. And I mean, from the way I was prepared by his attorneys to the way the husband's family -- or the man that was killed's family acted, it was a show. It was barbaric. It was horrible.

MARTIN: Thank you, ma'am. Thank you for calling us. And I'm very sorry for what's happened to your family.

Mr. Marquis, what do you make of Lynn's response to this? Even though she did testify on behalf of someone who was a relative, but she found the whole thing tawdry.

Mr. MARQUIS: I think she called it barbaric, and I certainly can, having been both a defense attorney and a prosecutor in capital cases, it is one of the most gut wrenching experiences for everybody. Nobody wants to be there. Nobody wants to be on the stand.

Now, the woman who just called us, obviously, wasn't giving victim impact evidence. She was doing the exact opposite, something that's happened for a long time, which is something that's probably allowable and necessary, which is for the defendant to be able to put any evidence they want in front of a jury that would show that, that mitigates against a sentence of death or redeems them or explains in some way the horrific act that they --

MARTIN: Mr. Marquis, we need to take a short break, but we're going to come back after the break and talk more about this.

Mr. Weisberg, you can respond when we come back from a short break. Well take more of your calls on jurors and the death penalty. I'm Michel Martin. It's TALK OF THE NATION from NPR News.

Today, how do jurors decide whether or not to impose the death penalty? Should emotional victim testimony play a role in that decision? Our guests are Robert Weisberg, law professor and director of the Criminal Justice Center at Stanford University, and Joshua Marquis. He's District Attorney of Clatsop County in Astoria, Oregon. Join the conversation. Call us at 800-989-TALK. Our email address is talk@npr.org.

Mr. Marquis, I wanted to raise with you a criticism of the death penalty, which is that, it's already weighted so heavily in favor of the prosecution's side. Now, you've talked about the fact that a very small number of cases are presented for, are death penalty eligible to begin with, that a very small number of cases ever get to that point. But the criticism is that the system is already very stacked. It depends on who the victim is, as Mr. Weisberg pointed out. That minorities who kill white people are far more likely to be subjected to the death penalty.

And then, in order to serve on a jury, as one of our earlier guests told us, you had to be death penalty qualified, which is to say, if you have a moral objection, you're not invited to serve. You're disqualified. If you're saying, look. I just have a moral objection to the death penalty, which is not a fringe opinion in this society. It's a perfectly acceptable mainstream point of view. You can't serve.

And then the final piece, this emotional testimony at the penalty phase further stacks a deck that's already stacked. How do you respond to that?

Mr. MARQUIS: Well, if the deck is stacked at all, and probably, appropriately, it's on behalf of criminal defendants. When I prosecute cases, I am out spent by indigent defense about 10 or 20 to 1. And I think that's appropriate, because when the state is seeking to do something as serious as take someone's life or put them in prison for the rest of their life, they deserve a good quality defense.

I can't speak to every place in the country. I know in my state that happens. And I speak around the country, and I think it's much more common. And the fact of the matter is that, for whatever reason, a white murderer is about twice as likely to receive the death penalty as a black murderer.

As Professor Weisberg knows, the overwhelming majority of murders in this country are not cross-racial. Unfortunately, there's a very, very high rate of African American men killing other African American men. And it is true that in many of those cases, the death penalty is not imposed.

This may be a staggeringly politically incorrect statement, but I am prepared to make it, is for whatever reason, it appears that white people tend to commit worse kinds of murders and the kinds of murders that are often death eligible. Ted Bundy, John Gacy, sex crimes involving children, multiple murders. It's relatively unusual to see those, for whatever reason, committed by African Americans. But --

MARTIN: And those tend to be more, because there are, what, that if it's some other crime in the course of a murder, then it's considered more heinous. Like kidnapping or a sexual crime.

Mr. MARQUIS: Yeah. Most states have what is called aggravators. In California, it's called special circumstances, meaning what is it that takes this murder above just any other murder? It usually has to be, like, a torture or murder of a police officer in the course of the duty. Something above and beyond.

But to answer your question about death qualification -- and I've tried a number of death penalty cases -- and it's not whether you have a moral objection. It's whether your moral objection --

I have tried many cases in which half the people on the jury have said they don't believe in the death penalty, but what they are able to say is, I don't believe in it, but if the facts warrant it, I will vote that way. Now, the question comes up, is your feeling so strong that you simply cannot apply the law? And if you can't apply the law, and that works the other way, by the way. I have plenty of jurors who get up and say, if I find, if I determine that this person really did murder this 2 year old girl, then that's the end of the discussion. They should get death.

And the defense attorney says, you mean there's really nothing else?

No. That's my decision.

And that person's bounced off the jury as well.

MARTIN: Okay, Mr. Weisberg, I think we'd like to hear from you. But I was suggesting that the criticism is that the deck is stacked, and Mr. Marquis says it's not. It's, in fact, stacked in favor of the defendant. Your thoughts there?

Mr. WEISBERG: Well I think we've gone off in the wrong direction here. I actually agree with most of what Mr. Marquis just said in response to your last question. Some kind of death qualification is clearly necessary. Second of all, as I said earlier, the key factor, statistically, is the race of the victim, and he is also, of course, right that most killings are not cross-racial. And also, for example, that the most heinous serial killers have traditionally been white.

I don't disagree with any of those things. I do disagree rather strongly with some misleading things he said in response to your question earlier. He said that it is not true that all killings are the same. I never that all killings were the same, and in fact, lots of aggravating factors that have nothing to do with victim impact statements are designed precisely to differentiate certain killings from others, including factors dealing with the heinousness of the manner in which the killing was done.

Second, the Supreme Court certainly had some alternative to an all or nothing victim impact rule. Information about exactly who the victim is, what his situation in life, or her situation in life was, is first of all going to come out in the guilt phase anyway. It can come out under certain controlled circumstances in the penalty phase. But as the Moussaoui case, admittedly an extreme one, shows, it's very hard to put any constraints on these things. And what starts out in Mr. Marquis's view as a way of humanizing the victim turns into something quite, quite different, and quite excessive.

MARTIN: Let's bring another caller into the conversation. Let's go to Kalamazoo, Michigan, and Jerry. Jerry, what's on your mind?

JERRY (Caller): Thank you for taking my call. I am the father of a daughter who was murdered a couple of years ago, just about right at this time of year. And --

MARTIN: I am so sorry.

JERRY: Thank you. Horrendous couple of years. The trial took place last September, and it lasted three weeks. There was a conviction of murder in the first degree. There's no death penalty in Michigan, which I'm grateful for. I'm really glad that there isn't. But the victim impact statement, from my perspective, was very important for me. And I wanted people to hear what I had to say.

Once the verdict was done, or read, the jury was done. They were dismissed. They weren't there for the impact statement. The court was pretty full of people though. And I'm the kind of person that, I'm emotional and logical both, so it was a very circumstantial case, and there's always a little doubt, you know? And even though it was my daughter, I still, you know, can understand --

MARTIN: Was it important for you to be able to address the court?

JERRY: Absolutely. It was very, very important.

MARTIN: Why was that?

JERRY: Well, because I wanted to put the whole thing in a broader context than just the narrow context that the testimony that was permitted. A narrow context being, my daughter's life, the people that she hung out with, that he hung out with. By the way, this was an adopted daughter and she was Dakota Native American, that whites commonly call Sioux. And the defendant was an African American man. I don't know whether that has anything to do with it or not.

MARTIN: But it made you feel better to be able to speak about her?

JERRY: It was very important. And it was important to speak about her, it was important for people who were involved in the case in a variety of ways who were in the courtroom to hear that there was a broader context to this. And maybe I made it too broad, but I think that -- my daughter was an alcoholic for one thing, and I said, you know, fur trappers in the 18th century are not in this courtroom on trial. But they are in the courtroom, because of the alcohol they brought to the Native Americans. And slave traders of the 17th, 18th, 19th century are in this courtroom because they influenced our lives today and our children's lives in an extremely negative --

MARIN: Can I just ask you one question, sir, if you don't mind?

JERRY: Sure.

MARTIN: And that is that you said you were grateful that there is no death penalty in your state. Why is that? Because you object to it?

JERRY: The short answer is I think it's barbaric. But the longer answer is what if this guy actually is innocent? He was convicted, but like I said, it was a circumstantial case. There's always that little bit of doubt hanging out there. And --

MARTIN: So you were, it offered you some comfort, that perhaps a mistake would not be final. Finally, if I could just ask you, do you think that testimony such as yours, had there been a death penalty, would you have still wanted to testify?

JERRY: Well, either way I wanted to make a victim impact statement. That's true. I spent quite a bit of time preparing for it. And somebody at the University of Indiana actually contacted me to see if they could put it on Daily (unintelligible), I mean, my whole victim impact statement. They got a hold of it somehow.

MARTIN: Well, thank you. Thank you so much for calling us. Thank you so much for calling, sir.

Let's go to Kansas City, Missouri, and Jessica.

JESSICA (Caller): Hi. Thank you for taking my call. I just wanted to make a point that, I think it needs to be pointed out that it's somewhat of a popularity contest, but not in the fact of who's more popular, the victim or the perpetrator, but just the fact that, let's say you don't have, you know, a victim's family there that can testify or that can leave an impact statement. Does that mean that their perpetrator should get less time just because they don't have anyone to give an emotional statement for them?

MARTIN: Well, thank you. It's an interesting question.

Mr. Marquis, how -- what happens in situations like that where there's no one to speak for the defendant?

Mr. MARQUIS: There's almost never not anybody to speak for them. And in fact, the most poignant cases that I remember trying, they actually were non-capital murders, were ones of people who were homeless, who were drug addicts, who were what many people called throwaways. And as a prosecutor I had to work very hard to find their relatives, many times out of state, and I never ceased to be moved by the statements made in victim impact evidence.

Now in capital cases, which we're talking about, they are intended to help the jury make a decision. But as the caller from Michigan indicated, there's a greater use for them, a catharsis that goes beyond just emotional, but a recognition that the system is made up of a number of parties. And although the state is charging the defendant, we cannot do what we did so long in this country, which is completely disregard victims or just consider them sort of a necessary, you know, a pertinence that we had to sort of put up with.

MARTIN: I just needed to pause for just a moment to say that you're listening to TALK OF THE NATION from NPR News.

Mr. Weisberg, may we talk to you about that? What about this father from Michigan, so clearly torn, so clearly torn and wanting to do the right thing? By all sides, wanting to do the right thing by his daughter and wanting to do the right thing by the system and wanting her life to mean something and wanting people to know who she was. I mean, shouldn't he -- I mean, isn't the purpose for justice restorative as well as punitive? I mean, isn't part of the purpose to allow the community to heal and if that's what it takes to allow someone in the community to heal, to speak up for that lost person, to say that, you know, this person meant something to me, is that really so wrong?

Mr. WEISBERG: No. There are ways of doing it. First of all, in many jurisdictions, a family member will be able to make the statement to the judge after, and this was the case of the gentleman in Michigan described, the jury has left. There is a chance at the very last moment before the judge confirms the sentence for the family member to speak. And, one could hardly object to that.

But, that's rather different from the question of having extremely extended victim impact statements, including statements from people who were not victims in the strict sense.

In the Moussaoui case, somewhat improbably, Mayor Giuliani spoke the other day, presumably to give the jurors a full sense of how horrific, you know, 9/11 was. I'd hate to think of anybody on that jury who needed that testimony to understand how horrible 9/11 was.

Last thing I'd say is, I applaud Mr. Marquis because it sounds like he's the kind of prosecutor who tried to make sure that no victim of a murder was denied justice because of the unavailability of large numbers of relatives. But, in many jurisdictions, when a prosecutor decides whether to seek the death penalty at all, surely the prospect of whether she is going, she the prosecutor, is going to have a powerful amount of victim impact testimony available is going to make some difference in deciding whether to go forward at all.

So I just want to emphasize, I'm not against victim impact statements totally. And I'm not against big victim impact statements necessarily because they hurt defendants. Sometimes they hurt the prosecution. Or the availability of them does.

MARTIN: Yesterday the judge in the Moussaoui trial warned prosecutors to limit the amount of emotional testimony. She said she was concerned that too many victims' accounts may be overly prejudicial t the jury and could serve as grounds for an appeal.

Mr. Marquis, what about that? Could there be an appeal based on the effect of direct victim testimony?

Mr. MARQUIS: Oh, absolutely. The one person I have on death row has had his sentence reversed three times. And once was, it was specifically because the victim impact evidence was allowed, despite the Tennesse vs Paine case and despite what the Oregon people, the legislature said. Eventually we go to a point where the Supreme Court of Oregon decided that it was allowed.

But you know, this is all a matter of restraint. The Moussaoui case is very unusual as a death penalty case is in so many ways, and particularly the, how attenuated many of the people who are giving victim impact evidence. In my experience, and you have to remember that 95 percent of murder cases are state prosecutions, not federal, and they don't usually end up on the front pages of the newspaper, but my goal is to limit victims to probably very, very limited, just say, tell these, tell the jurors a little bit what, in the case of my victims, Rod and Lois Houser were like as real human beings. What you remember about them, not how you remembered them when they were found slaughtered, not how many terrible nights you've had as a results. But just tell us, you know, the good things about them.

I don't think that degrades anybody. I think that ennobles the system.

MARTIN: Mr. Weisberg, very, very briefly, because we only have a couple of seconds left. It sounds to me, though, we are still torn as a society about this issue. You pointed out the Supreme Court changed its mind on this question once within four years, and Mr. Marquis has a case where there's an appeal based on testimony which is clearly permitted. It sounds like we're still not sure how we feel about the death penalty?

Mr. WEISBERG: Well, we probably won't resolve it, first of all. Again, I applaud Mr. Marquis. I think he is more professional in his approach to these cases than most prosecutors are. But second of all, it just gets down to the fact that there are some insoluble problems in the death penalty. The Supreme Court also considered, at one point, the possibility of not having any penalty phase at all. If you're guilty of a serious enough murder, the automatic sentence is death. It struck that concept down, because, you know, it felt it was necessary to have some jury discretion in sentencing. And once you have that, it's very hard to draw boundaries about what is the appropriate amount of emotion.

MARTIN: And that has to be the last word. Thank you both for joining us, so much.

Robert Weisberg, he's a law professor and director of the Criminal Justice Center at Stanford University. He joined us from studios on Stanford's campus in California. And Joshua Marquis is the district attorney of Clatsop County in Oregon. He spoke to us from his office in Astoria.

This is TALK OF THE NATION from NPR News. I'm Michel Martin.

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