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SCOTUS, a death sentence should not be the price of a lazy defense

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Back in 1997, Carlos Ayestas was on trial for his life. Having been convicted of murder, his jury was now required to decide whether he was to be executed or spend the remainder of his life in prison.

The jury was going to have to depend on Ayestas’ attorneys to learn about his life story and why he did not deserve to die. Unfortunately, for Ayestas and his jury, his attorney’s presentation to the jury of evidence to spare her client’s life lasted all of two minutes.

{mosads}His current attorneys have now identified a number of red flags that should have been investigated at the time of his trial — signs of mental illness, substance abuse, severe blows to the head — material which a competent defense attorney would have viewed as vital clues to be followed and developed.


The jury, however, learned about none of these things. Left to decide Ayestas’ fate with nothing more to go on than that he had committed the murder, the jury sentenced him to death.

Ayestas’ current lawyers are now before the Supreme Court asking for the resources to do the investigation that his original lawyers failed to do. This would seem to be the easiest of questions given that the Supreme Court has long recognized a basic principle of fairness: a capital jury must hear both sides of a story before making the momentous decision of whether someone should be put to death.

The state of Texas, however, opposes giving Ayestas’ lawyers the ability to develop their client’s life story, and the lower courts agreed on the rationale that a jury would not have been swayed to vote for life even if they had heard, for instance, evidence that Ayesta suffered from serious mental illness.

In making this dismissive conclusion, Texas and the lower courts greatly underestimate the individuals who serve as jurors.

A capital sentencing hearing is unlike any other proceeding in the law: it asks jurors to draw upon their personal moral beliefs in deciding whether someone deserves to die after considering all of the evidence.

If the defense lawyers do their job, capital jurors will often hear weeks or even months of evidence about a defendant’s upbringing, intellectual limitations, addictions or mental health.

As anyone who has ever watched a Spielberg movie, read a Shakespeare play, or watched a show like “Making a Murderer” knows, learning the full story about someone can dramatically change how we perceive someone’s actions.

And this is precisely what the Capital Jury Project, a study funded by the National Science Foundation, discovered after extensive interviews with over a thousand jurors who have actually served on a jury that had to decide between a life and death sentence.

Even in cases with appallingly brutal facts — jurors were still often moved to vote for life. These votes were not out of opposition to the death penalty, because an individual can sit as a capital juror only if he or she could vote for a death sentence. They were instead a conscientious consideration of the defendant’s case for life (what the law calls “mitigating evidence”) where one or more jurors decided that the defendant was not deserving of execution.

To describe a capital jury’s deliberations as intense would be an understatement, but the intensity had the benefit of exposing jurors to other juror’s viewpoints and experiences, and jurors who thought they had made up their minds for death would recall how hearing another juror’s perspective had led them to change their vote. 

It is simply wrong, therefore, for judges to say that they can “know” given the brutality of a crime that no individual juror would vote for a life sentence. The empirical evidence says they cannot know. Jurors themselves will frequently describe how astonished they were to discover that a defendant who they had seen as a two-dimensional monster transformed into a three-dimensional human being as they heard about his life and childhood. And the testimony that convinced jurors to vote life was often the type of testimony whose power cannot come across from the lifeless paper record that a judge must rely upon — stories, for instance, about the defendant told by a mother or a sister or a daughter that jurors would explain convinced them because they could see and hear the sincerity as they testified.

Understanding that a juror’s death penalty decision is based on far more than the fact that a terrible crime has occurred explains why even defendants whose crimes shocked the entire nation — such as James Holmes’ killing of a dozen people in a Colorado movie theater or Zacarias Moussaoui’s role in the 9/11 attacks that killed almost 3,000 people — had their lives spared once the jury heard both sides. Ayestas’ case asks no more of the Supreme Court than to allow his attorneys to give the jurors the information they need to carry out their duty.

Scott Sundby is a law professor at the University of Miami. He was a principal investigator with the Capital Jury Project and his book, “A Life and Death Decision: A Jury Weighs the Death Penalty,” focuses on the human side of jury decision making in capital cases.

Tags death penalty Scott Sundby Supreme Court of the United States

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