Mimesis Law
19 February 2017

Five Justices Made A Charleston Memorial Service Constitutional

January 10, 2017 (Fault Lines) — Dylann Roof appeared ready to let U.S. Attorney Nathan Williams lead him to a South Carolina gallows during his sentencing hearing. Williams gladly obliged, bringing thirty-eight witnesses with victim impact statements despite the admonitions of U.S. District Judge Richard Gergel. Eventually, David Bruck, the original lawyer appointed to defend Roof, had enough.

David Bruck broke his silence, standing to speak outside the presence of the jury. Since the very first witness, he had done everything he could to advise his former client of his rights, only to be repeatedly rebuffed. The resulting proceedings were violating “every principle restraining victim impact statements under the 8th Amendment,” he argued indignantly. “It is happening because this man cannot protect his own rights.” Bruck urged the court to reappoint him to defend Roof, or call a mistrial. “This is his sentencing, it is not a memorial service,” he said. (Emphasis added.)

Victim impact statements are sold as a means of letting the victims of a crime tell a trier of fact the effect an alleged crime had on them. They are oral or written statements submitted during the sentencing phase of a trial, and allegedly assist a judge or jury in determining the proper punishment for a crime. David Bruck’s contention that the excessive number of victim impact statements violated Roof’s constitutional rights might have some merit. Unfortunately, the Supreme Court’s decision on what right is violated seems to vary based on who sits on the bench.

Back in 1987 the Supreme Court actually held victim impact statements per se* inadmissible because they violated a defendant’s Eighth Amendment rights. The court, in a 5-4 ruling, said each defendant must be considered as a “uniquely individual human being” and that jurors must base their decision at sentencing “on the ‘character of the individual and circumstances of the crime.’”

Two terms later, in a South Carolina case involving the death of a minister, a divided court upheld this stance, finding victim impact statements regarding the circumstances of a crime were inadmissible. The rationale in both cases was a victim impact statement might inflame the passions of a jury and convince them to vote for the death penalty. Only the evidence regarding a defendant’s “blameworthiness” should be considered.

Victim impact statements would come back in fashion during the nineties with another divided court. Writing for the majority, Chief Justice William Rehnquist opined these were legitimate pieces of evidence relevant to a jury’s decision on whether to impose the death penalty. There was “no reason to treat such evidence differently.”

Four justices would dissent. Thurgood Marshall blasted the majority opinion, noting the only difference in Payne v. Tennessee was who sat on the bench. Overturning the precedent of inadmissibility in Booth v. Maryland and South Carolina v. Gathers was “a preview of an even broader and more far-reaching assault upon this Court’s precedents.” Marshall had no issue telling the world he saw the majority’s opinion as a terrible decision.

Cast aside today are those condemned to face society’s ultimate penalty. Tomorrow’s victims may be minorities, women, or the indigent. Inevitably, this campaign to resurrect yesterday’s spirited dissents” will squander the authority and the legitimacy of this Court as a protector of the powerless.

Justice John Paul Stevens wasn’t entirely happy with the majority either. His dissent said the argument for the admission of victim impact statements had “no proper place in a reasoned judicial opinion.” After a brief review of case law supporting the court’s decision in Booth, Stevens decried the majority’s opinion as one abandoning “rules of relevance that are older than the Nation itself and ventures into uncharted seas of relevance and ventures into uncharted seas of irrelevance.”

Stevens would also point to two flaws in a State’s use of victim impact evidence. First, the evidence is about the victim, not the defendant. While they may be nice appeals to emotion, the effect of a crime on the victim had nothing to do with a defendant’s “personal responsibility and moral guilt.” It had no basis in determining whether a defendant should die.

Second, victim impact evidence could not be applied consistently because the quantity and quality varies from case to case. It could not be determined until after the commission of a crime, and its introduction ran the risk of “wholly arbitrary and capricious action” that would impose the death penalty. With prior case history placing the burden of proving a defendant deserved to die for his or her actions strongly on the State, the Rehnquist court’s majority opinion allowed the introduction of irrelevant, illogical evidence as an aggravating factor during sentencing.

Victim impact statements are still admissible because five unelected lawyers were moved by an appeal to emotion instead of logic, reason and principle. That emotional appeal guided Judge Gergel’s decision to brush off David Bruck’s objections and allow the “memorial service” in Charleston to continue. The federal dogpile of tears and anguish in Dylann Roof’s sentencing hearing is perfectly legal and constitutional because the most dangerous branch of government shed a tear for victims one day in 1991, abandoning precedent, logic, and reason.

*Latin for “in and of itself.”

2 Comments on this post.

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  • stevie g
    11 January 2017 at 1:36 pm - Reply

    Excellent piece, Chris. Thanks!

    • CLS
      11 January 2017 at 2:23 pm - Reply

      You’re welcome. Sometimes it’s important to remember how the system works, whether we like it or not.

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