Jury still out on fairness of victim impact testimony

July 31, 1991|By Michael J. Clark | Michael J. Clark,Howard County Bureau of The Sun

The Tirado case saw victim impact statements introduced into evidence for the first time in Maryland courts since the U.S. Supreme Court approved the practice last month, reversing a previous 1987 decision that prohibited their use in capital cases.

Despite the high court's ruling on the admissibility of such statements in capital cases, the practice is a controversial one in some quarters.

Stuart Comstock-Gay, director of the American Civil Liberties Union of Maryland, said he opposed their use. "It creates a sentencing which is going to be inherently unfair. It is an emotional statement because these crimes have a terrible impact on people, and we punish people for the crime they commit, not for the subsequent impact on people."

However, Richard B. Rosenblatt, an assistant Maryland attorney general who handles appeals of capital cases, disagrees, saying that the impact statements allow the jury "to appreciate the full VTC extent of the harm caused by the atrocious conduct of the criminal defendant. A defendant who has caused such grief cannot complain if a jury learns of the results of his actions."

In the view of juror Lloyd Perrault, the jury made the "basic assumption that a loss of a family member will have a severe emotional impact. So you take that into consideration." Mr. Perrault said, however, that he expected the widow of the slain trooper to testify and that he "was surprised they [the state] rested the case without it."

He said the jury was aware of the presence of the widow, Virginia Wolf, in the front row behind the prosecution table and could sense her emotional state. "We sat five weeks and watched her react to every piece of evidence and knew she was hurting a lot," Mr. Perrault said.

The testimony Friday by the Tirado family also was "highly emotional," he said, and had an effect on some jurors. "You know that in cases like this, they will try to play with your heart strings," he said.

Mrs. Wolf said she disagreed with county Circuit Court Judge Raymond J. Kane's decision to disallow testimony that she said would have referred to Eric Joseph Tirado making an obscene gesture toward her July 18 following his conviction. She said the testimony would have raised questions about Tirado's remorse. "The only remorse he felt was for himself," she said.

However, from his perspective, Mark Smalley, another juror, said he did not think it would have affected the outcome. "It was as emotional a time as a person can have," the juror said. "I don't think we would have considered it very heavily. He [Tirado] was lashing out in anger."

Michael Rexroad, the chief prosecutor, said the legal implications of live testimony by Mrs. Wolf were reviewed by the state attorney general's office and afterward the prosecution team "decided to take a conservative approach."

Mr. Rosenblatt, the assistant attorney general, said the concern was that "under the recent Supreme Court decision, the victim impact testimony had to be introduced without unduly inflaming the jury. The issue of whether to go that route [of using typed statements] was up to the prosecutors."

Mr. Rexroad said that state law was unclear on the use of live victim impact statements in capital cases.

Russell P. Butler, the attorney and lobbyist for the Stephanie Roper Committee, which is an advocate for crime victims, maintained that a section of state law allowing live victim-impact testimony at the discretion of the judge was enacted in 1986 at the urging of the Roper Committee.

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