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Petition Preview: Enya, the Death Penalty, and Video Victim Impact Evidence

Nearly two decades ago, in Payne v. Tennessee (1991), the Supreme Court held that the Eighth Amendment did not bar the introduction of “victim impact evidence” at the penalty phase of capital trials. The Court held that just as the Constitution gave defendants the right to present evidence designed to avoid imposition of the death penalty, it did not forbid testimony designed to show the victim was a unique human being whose loss left an impact on the survivors and society at large.

At the opening conference at the end of September, the Justices will decide whether to grant review in a case involving whether the Constitution nonetheless places limits on how such evidence may be presented. The petition in Kelly v. California (07-11073) asks whether the presentation of what might be called video scrapbooks – containing photographs and home movie footage of the victim, and, in this case, set to background music – can so prejudice the jury as to deprive the defendant of a fair trial in violation of the Due Process Clause of the Fourteenth Amendment, or create an arbitrary risk of capital punishment in violation of the Eighth Amendment.

The case stems from the capital murder trial of Douglas Oliver Kelly, whom a California jury convicted in the 1993 killing of Sarah Weir, a 19-year-old he had befriended at a local gym. According to an autopsy, the victim — whose body was found naked — had been stabbed twenty-nine times with a pair of scissors. Less than three months later, authorities arrested the defendant as he attempted to re-enter the country through Mexico, finding two of the victim’s personal checks, containing what appeared to be her signature, in his possession.

At trial, four women testified to having been separately raped by the defendant in the decade before the crime – including one woman who testified the defendant raped her less than two weeks before the victim’s murder, at the same apartment where her body was found, and while holding a pair of scissors to her throat. The defendant offered no evidence at the guilt or penalty phase, and the jury imposed a death sentence.

On appeal, among other issues, the defendant challenged the introduction at the penalty phase of a nearly twenty-minute video montage of the victim’s life (available below). Prepared and narrated by the victim’s adoptive mother, the film contained roughly ninety photos of the victim from infancy through high school graduation. Interspersed among the photos were a dozen video clips, some lasting a few minutes, showing the victim engaged in various childhood activities, such as playing with friends in a pool, readying her Halloween costume, and singing in a school choral group.  In the background plays music by Enya – one of the victim’s favorite artists – an Irish musician known for layering recordings of her singing in different languages.

In the final minute, following photographs of the victim’s grave site, the film concludes with video of horsemen riding across the Canadian countryside.  The victim’s mother says, “As time goes by I try very hard not to think of Sarah in terms of this terrible crime that we’ve had to deal with here in the court, but rather think of her in a place like this…This is filmed in Southern Alberta, the land where Sarah’s people lived for so many generations. This is the kind of heaven she seems to belong in.” (The victim, a Blackfoot Indian, was born in Canada.)

(The first half of the video is available below. The second half, along with further information about the case, is available after the jump. To download the full video, click here.)



At trial, the judge declined to exclude the tape under Section 352 of the California Evidence Code (the analogue to Federal Rule of Evidence 403), which permits courts to exclude otherwise relevant evidence if the danger of unfair prejudice “substantially outweighs” its probative value.  On appeal, the California Supreme Court affirmed the trial judge’s decision to admit the tape, relying in large part on a decision it had issued the previous year involving a clip of a twenty-five-minute news interview the victim had given at a local television studio.

While the prior decision upheld the introduction of the tape at issue, the court said courts should exercise strong caution in admitting videotaped victim impact evidence, particularly if the video “lasts beyond a few moments,” “emphasizes the childhood of an adult victim,” or “is accompanied by stirring music.” Over the dissent of one justice, who would have held that the tape in Kelly’s case exceeded the very limitations the California Supreme Court previously established, a majority of the court held that the trial judge did not abuse his discretion in admitting the tape (opinion available here).

In his petition for certiorari, Kelly argues the video introduced in his case greatly differs from the type of victim impact evidence the Court confronted in Payne – where a grandmother testified during the penalty phase about the impact of the crime on her grandson, who survived a gruesome attack in which his mother and sister were killed. Writing for a 6-3 majority, Chief Justice Rehnquist reasoned that two prior rulings which barred the introduction of victim impact evidence unfairly weighted the scales in favor of capital defendants.  While virtually no limits were placed on the type of evidence capital defendants could offer in mitigation, Rehnquist wrote, states were barred from offering so much as a “quick glimpse of the life” of the victim.At the same time, the majority suggested that not all victim impact evidence was automatically admissible. “In the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair,” Rehnquist wrote, “the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.” Similarly, Justice Souter wrote in a concurring opinion that such evidence “can of course be so inflammatory as to risk a verdict impermissibly based on passion, not deliberation.”

The Supreme Court has not subsequently revisited the issue of victim impact evidence. In the ensuing years, numerous lower courts have permitted prosecutors to introduce videotapes during the penalty phase of trials, generally featuring either brief clips from home movies or television interviews with the victim. For example, the Maryland Supreme Court allowed a ninety-second tape of the victim playing the piano; the Missouri Supreme Court allowed a tape showing the victim’s family at Christmas; the Montana Supreme Court allowed a tape of the victim playing with his children; and the Arkansas Supreme Court allowed a tape narrated by the victim’s brother (but otherwise silent) containing some 160 photos of the victim with his family and friends.

According to Kelly’s petition, however, courts have “held the line” against the introduction of tapes containing both background music and extensive video footage or collections of photographs. As one example, it notes a federal district court in Massachusetts barred a twenty-seven-minute video containing some 200 photographs of the victim set to the music by the Beatles and James Taylor. More significantly, the Texas Criminal Court of Appeals reversed the introduction of a seventeen-minute video montage – also set to background music by Enya, as well as Celine Dion – created by the victim’s father as a tribute to his slain son. (On remand, a lower appellate court found the tape prejudicial and vacated the defendant’s sentence.) The petition also says that during the trial of Timothy McVeigh, the judge barred the prosecution from introducing wedding photographs and home movies as victim impact evidence.

The petition argues that while the Payne majority envisioned “objective factual testimony” about the impact of the crime, video tributes marking milestones in the victim’s life are no different than a eulogy.  And with the advent of computer editing software, the petition says, even amateur filmmakers can now replicate advanced cinematic techniques, such as the “Ken Burns effect” – the technique, commonly used in historical documentaries to enhance dramatic effect, of zooming or panning the camera over still images. 

The petition also contends the inclusion of background music serves no purpose beyond heightening the emotional experience of the viewer. Kelly’s attorney cites a 1940 essay in the New York Times in which composer Aaron Copland discussed his score for the movie, Of Mice and Men. “The quickest way to a person’s brain is through his eye,” Copland wrote, “but even in the movies the quickest way to his heart and feelings is still through the ear.”  The petition argues that just as background music could not be played during in-court testimony, nor should it be allowed to accompany evidence on videotape.

In its brief in opposition, the state of California argues that no genuine conflict exists on the admissibility of victim impact evidence presented on videotape. On the contrary, the state argues, most courts have admitted such evidence, and those that excluded it relied on state rules of evidence rather than the Due Process Clause. In the absence of a conflict below, the state argues, the petitioner merely seeks review of the California Supreme Court’s application of Payne to the facts of his case — a request not worthy of plenary review. And even if the background music or closing images were irrelevant to the impact on the victim’s family and should not have been admitted, the state concludes, their inclusion did not prejudice the defendant when considered in light of the trial as a whole.

The petition will be considered at the Court’s opening conference September 29. The Supreme Court could announce its decision as soon as September 30.