Death by Irrelevance: The Unconstitutionality of Virginia's Continued Exclusion of Prison Conditions Evidence to Assess the Future Dangerousness of Capital Defendants

By Lindsey, Andrew | The William and Mary Bill of Rights Journal, May 2014 | Go to article overview

Death by Irrelevance: The Unconstitutionality of Virginia's Continued Exclusion of Prison Conditions Evidence to Assess the Future Dangerousness of Capital Defendants


Lindsey, Andrew, The William and Mary Bill of Rights Journal


1............................................................1258

A. A Hypothetical Illustration of What Prison Conditions Evidence Is and How It Relates to Future Dangerousness in a Capital Trial . .. 1258

II...........................................................1263

A. The General Constitutional Right to Rebut in Capital Cases......1263

B. The Lockett v. Ohio Standard of Relevance and Virginia 's Approach to Excluding Prison Conditions Evidence in Future Dangerousness Cases ....................1267

III...........................................................1275

A. The PoV-Lockett Cases and the Right to Rebut................1275

B. The PoV-Lockett Cases ' Erosion of the Lockett Standard of Relevance....................................1277

C. The Relevance of Prison Conditions Evidence in Virginia After the Erosion of Lockett ...............................1279

IV ..... 1283

A. The Reason Behind Virginia 's Approach to Prison Conditions Evidence 1283

B. Implementing a Solution 1286

Conclusion 1289

I.

A. A Hypothetical Illustration of What Prison Conditions Evidence Is and How It Relates to Future Dangerousness in a Capital Trial

Imagine you are a criminal defense lawyer in Virginia. One day you end up representing a Virginia resident in his late sixties who is on trial for capital murder.1 The indictment alleges that your client abducted a little girl in his neighborhood and committed acts of sexual misconduct with her before ultimately strangling her with a plastic bag and burying her body in a nearby patch of woods.2 The Assistant Commonwealth Attorney prosecuting the case has a considerable amount of evidence against your client, and the jury eventually produces a guilty verdict despite your best efforts to raise a reasonable doubt that your client committed the crime. At this point, the trial procedurally shifts from what is commonly referred to as the "guilt phase" to the "penalty phase"3-the difference being that in the guilt phase the jury is only deciding whether your client committed the crime and in the penalty phase it is only deciding what his punishment should be for that crime.4

In the penalty phase, the prosecution will have to prove at least one of two sentencing factors (known as "aggravators") before the jury can impose a death sentence;5 either that the defendant would probably pose a "continuing serious threat to society" if imprisoned for life, or that his conduct in committing the crime "was outrageously or wantonly vile."6 The former is referred to as the "future dangerousness aggravator" and is a typical aggravator included in several state capital sentencing statutes.7 The latter aggravator is referred to as the "vileness aggravator"8 but is less important for purposes of this paper.

To cover his tracks, the prosecutor attempts to prove that both aggravators apply to your client in case you are successful in disputing one of them. One way to successfully dispute these aggravators would be to present countervailing sentencing factors known as "mitigators," which are facts such as a defendant's lack of a significant prior criminal record or the defendant's age at the time he committed the offense.9 These factors are the opposite of aggravators because they are reasons why a defendant should be spared from a death sentence.10 Another way to dispute aggravators would be to directly rebut the application of them to your client by proving that he neither committed his crime in a particularly vile way nor is he a future danger to society.11

Attempting to save your client's life by killing two birds with one stone, you approach the jury box and make the following remarks:

Ladies and gentlemen, no one can dispute the fact that the victim suffered a disturbingly tragic fate at the hands of my client, but he is now nearing his seventieth birthday and has an otherwise pris- .tine legal record. …

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