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Univ. of South Carolina School of Law

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Tuesday, November 11, 2008

Can't Stop The Music, Take 2: Supreme Court Denies Cert In Victim Impact Statement Cases

Last December, I posted an entry about a case in which a jury convicted Douglas Oliver Kelly of the first degree murder of Sara Weir under the special circumstances of robbery, rape, and with personal use of a deadly weapon. And during the penalty phase of Kelly's trial, after which he was sentenced to death, the court allowed the prosecution to play a 20-minute videotaped victim impact statement with a montage of photographs of Sara Weir's life, narrated by her mother. On appeal to the Supreme Court of California, Kelly claimed that the videotape was unfairly prejudicial.

One of the grounds for his appeal was that the videotape should have been excluded because it was accompanied by Enya music.  The Supreme Court of California attempted to distinguish previous cases where courts had found that videotaped victim impact statements accompanied by music from the Beatles, James Taylor, and Celine Dion were or should have been deemed inadmissible.  According to the Court, a rational line could be drawn because Beatles and James Taylor music is "stirring" and could go "beyond what the jury might experience by viewing still photographs of the victim or listening to the victim's bereaved parents" while the Enya music in the video in Kelly's case was "generally soft, not stirring," with most of the words unrecognizable. 

Then, this September, I posted a second entry, this one about Kelly filing a petition for writ of certiorari to the Supreme Court.  As I noted,

     In that petition, he has claimed that "courts have 'held the line' against the introduction of tapes containing both background music and extensive video footage or collections of photographs....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."

Well, yesterday, the Supreme Court denied cert in Kelly's case, Kelly v. California, as well as in the similar case, Zamudio v. California.  While four justices were needed, only three, Breyer, Souter, and Stevens, favored review

Stevens issued a dissent, which was unsurprising because he had previously dissented in Payne v. Tennessee, 501 U.S. 808 (1991), the case which overruled Booth v. Maryland, 492 U.S. 496 (1987).  According to Booth, victim impact statements were per se inadmissible; according to Payne, the Eighth Amendment does not place a per se bar on admitting victim impact statements in the sentencing phase of capital murder trials, but, "[i]f, in a particular case, a witness' testimony or a prosecutor's remark so infects the sentencing proceeding as to render it fundamentally unfair, the defendant may seek appropriate relief under the Due Process Clause of the Fourteenth Amendment."

In his dissent to the denial of cert, Stevens noted:

     "I remain convimced that the views expressed in my dissent in Payne are sound, and that the per se rule announced in Booth is both wiser and more faithful to the rule of law than the untethered jurisprudence that has emerged over the past two decades."

Furthermore, Stevens found that:

     "even under the rule announced in Payne, the prosecution's ability to admit such powerful and prejudicial evidence is not boundless.  These videos are a far cry from the written victim impact evidence at issue in Booth and the brief oral testimony condoned in Payne.  In their form, length, and scope, they vastly exceed the 'quick glimpse' the Court's majority contemplated when it overruled Booth in 1991.  At the very least, the petitions now before us invite the Court to apply the standard announced in Payne, and to provide the lower courts with long-overdue guidance on the scope of admissible victim impact evidence.  Having decided to tolerate the introduction of evidence that puts a heavy thumb on the prosecutor's side of the scale in death cases, the Court has a duty to consider what reasonable limits should be placed on its use."

Breyer largely agreed with this last portion of Stevens' opinion, finding that:

     "the film's personal, emotional, and artistic attributes themselves create the legal problem.  They render the film's purely emotional impact strong, perhaps unusually so.  That emotional impact is driven in part by the music,  the mother's voiceover, and the use of scenes without victim or family (for example, the film concludes with a clip of wild horses running free)....I understand the difficulty of drawing a line between what is, and is not, constitutionally admissible in this area.  And in my view, the Court should grant certiorari and consider these cases in an effort to do so."

I have to agree with Breyer and at least the latter part of Stevens' dissent (I'm not sure about Booth's per se rule).  Right now, there is almost no guidance given to judges in deciding whether victim impact statements violate the Due Process Clause.  Instead, what we are left with is judge as music critic, with the judge in Kelly's case somehow being able to conclude that a victim impact statement accompanied by Enya music is permissible even where those accompanied by the music of Celine Dion, the Beatles, and James Taylor were not.  So, what do readers think?  And in reaching a conclusion, you might want to view the victim impact statement from Kelly's case, which the Supreme Court has posted here.

-CM

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