Court lets prosecutors use 'victim impact' statements in capital cases

June 28, 1991|By Lyle Denniston | Lyle Denniston,Washington Bureau of The SunWashington Bureau of The Sun M. Dion Thompson of The Sun's metropolitan staff contributed to this article.

WASHINGTON -- The Supreme Court, ending its term in a bitter fight over its duty to respect its own past precedents, gave prosecutors broad freedom yesterday to seek death sentences by making direct, emotional appeals to jurors for sympathy for murder victims and their families.

Overruling two recent precedents, one in a Maryland case four years ago, the other in a South Carolina case just two years ago, the court's conservative majority said the Constitution would no longer bar prosecutors in capital cases from spelling out in vivid detail "the human cost of the crime" to justify the death penalty.

The ruling -- a major victory for the emerging "victims' rights movement" -- frees prosecutors to describe graphically the good qualities of the murder victim, and to spell out the pain that the survivors have gone through because of the crime. That may not bear on the murderer or on the crime, but it does bear on the "harm caused," the court majority said, so it will be allowed.

The Bush administration was so strongly in favor of that kind of evidence that Attorney General Richard L. Thornburgh had gone to the court to argue personally for the result that emerged yesterday.

The court's majority had put a routine Tennessee case on a rapid-decision track as a test of its willingness to cast aside two 5-4 rulings against the use of so-called "victim impact evidence" before juries deciding for or against a death penalty. That case did not even raise the issue of whether the two past precedents should be overturned, so the court majority added that issue for the lawyers to argue.

In the Tennessee case, a prosecutor had told the jurors that a 3-year-old boy, who was stabbed repeatedly -- but survived -- and watched while his mother and little sister were murdered, would some day grow up and would "want to know what type of justice was done."

That kind of plea, the court ruled 6-3, will no longer be forbidden by the Constitution's Eighth Amendment -- the ban on cruel and unusual punishment that had led the court earlier to forbid "victim impact evidence" during sentencing hearings after a murder conviction. The 1987 decision had nullified a Maryland law permitting such evidence.

One of the precedents overturned yesterday was Booth vs. Maryland, a 1987 decision blocking the death sentence of John "Ace" Booth of Pimlico for murdering two of his neighbors. The other was Gathers vs. South Carolina, a 1989 ruling.

In Baltimore, State's Attorney Stuart O. Simms said his office would review its policy now that the court has handed down its ruling. Any use of "victim-impact" statements will be made after discussions between prosecutors and members of the victim's family, he said.

Ara Crowe, head of the trial division for the State's Attorney's Office, who had tried the case of John Booth in which victim impact evidence was used, and then barred by the Supreme Court, said, "We felt all along that it was something that should have been admissible and, needless to say, we were disappointed when it was ruled inadmissible."

However, Jerome S. Deise, who heads the death penalty unit of the Maryland Public Defender's office, said the decision would allow the use of evidence that focuses on the emotional impact of a murder, rather than on the murder itself. "The question, of course, is relevance," he said.

Two changes in the Supreme Court's membership -- the arrivals of Justices Anthony M. Kennedy and David H. Souter -- made the difference. Both of them joined the opinion by Chief Justice William H. Rehnquist in the Tennessee case, as did Justices Sandra Day O'Connor, Antonin Scalia and Byron R. White.

Justice John Paul Stevens, usually an unemotional member of the bench in public, spoke with evident passion against the ruling from the bench for nine minutes -- longer than it took Justice Rehnquist to announce the ruling. Reading from his dissenting opinion, Justice Stevens bluntly accused the majority nTC of giving in to political pressure. He called that a "great tragedy."

Justice Thurgood Marshall, in a dissenting opinion he did not read, said the "majority ominously suggests that an even more extensive upheaval of this court's precedents may be in store. . . . Power, not reason, is the new currency of this court's decision-making."

The release of the court's ruling provided a dramatic moment on which the court ended its term.

In the case of a convicted murderer, Pervis Tyrone Payne, the chief justice said, his defense lawyer had been allowed to put before the jury evidence that had nothing to do with "the circumstances of Payne's brutal crimes," so it was constitutionally permissible to let the jury hear "poignant" information about "some of the harm that Payne's killing had caused."

The ruling came in the case of Payne vs. Tennessee (No. 90-5721).

The case

Pervis Tyrone Payne, a "borderline retarded" black man, was given two death sentences for the stabbing murders of a 28-year-old mother, Charisse Christopher, and her 2-year-old daughter, Lacie, in their apartment in Millington, Tenn., June 27, 1987.

The woman's 3 1/2 -year-old son, Nicholas, was stabbed repeatedly in the same assault but survived and witnessed the other assaults.

At the sentencing hearing, a prosecutor urged the death penalty for Payne, saying that the jury's sentence would provide "the answer" to the little boy's wondering -- when he grows up -- "what type of justice was done." Another prosecutor dramatically stabbed a picture of the little boy with a butcher knife -- the murder weapon.

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