Famous Last Words III
Sample Jury Arguments # 9-10
quotations
anti-death penalty arguments

copyright © 2006 Ray Moses
all rights reserved


It is astonishing what power words have over man.
Napoleon Bonaparte

I hate quotations. Tell me what you know.
Ralph Waldo Emerson

Do not go where the path might lead
Go instead where there is no path, and leave a trail.
Ralph Waldo Emerson

9. USE QUOTATIONS AS A PERSUASIVE DEVICE IN YOUR JURY ARGUMENTS: Like other forms of persuasion, e.g., charts, diagrams, illustrations, rhetorical figures of speech, etc., quotations can be used to embellish and strengthen the emotional, logical, and ethical impact of your jury speech. We can use quotations as conceptual pegs upon which jurors can hang their own ideas.

Borrowing from others - Here's an anonymous quote: "If a thing has been said and said well by others, have no scruple. Take it, and use it in your jury argument." Certain brief sentences are peerless in their ability to give the listener the feeling that nothing remains to be said. In most jury arguments, you will be speaking about subjects about which other advocates have commented eloquently. It is a perfectly acceptable practice to utilize the persuasive statements of others, whether they be lawyers or laymen. Selectively borrowing (more commonly known as "swiping" or "stealing") from the jury speeches of other persuasive lawyers, living and dead, is an ancient practice and art form among all courtroom warriors trying to improve their craft. It's a proven fact that when a lawyer of great repute as a persuader is trying a case, the one time you'll find the courtroom packed with other lawyers is during jury argument. We are there hoping to find a nugget of wisdom we can use in our own trial practice. In most instances, the most that we can hope to achieve in such circumstances is to pilfer with good judgment.

When you use the ideas of others or quote their words expressly, you become a florist of their thoughts, arranging and displaying the beautiful litany of words but not growing them yourself. Of course, it's up to you whether to attribute the quote or adopt it as your own. When Abraham Lincoln delivered the Gettysburg address and said that "government of the people, by the people and for the people shall not perish from the earth," he was borrowing words already voiced by Daniel Webster. Webster had lifted the words from the Athenian Cleon, who had spoken them 1300 years earlier. In short, much of what we can say in adding force to jury argument is an echo of thoughts gleaned from others. With the express quote, we give credit to the source of our words.

To quote or not to quote - Here's another anonymous quote: Next to the originator of a good sentence is the quoter of it. Quotations, proverbs, cliches, adages, maxims, or any short saying expressing a well-known truth can sometimes be used to crystallize the courtroom advocate's point during jury argument. The decision to use a quotation should depend in part on your evaluation of your jury's receptivity, the circumstances, and, most importantly, your ability to pull it off without appearing phony. Quotes or catchy phrases will work on some jurors and not others. Some cases, e.g., plain-vanilla, malum prohibitum misdemeanors with no emotional overtones, are less conducive to quotations than others.  When you use words that you expressly attribute to others, by admission you are saying to the jurors that the words you are uttering don't come directly from your heart. You may be sacrificing a bit of sincerity to gain a bit of eloquence. Let's face it, some of us appear stilted when we speak anyone else's language than our own. Is there anything more inane (vapid, banal, insipid, over-cooked) in a conversation over the backyard fence than bookish language by a person who seems insincere? If you are not comfortable with quotations, share your wisdom and forget trying to use the words of some famous person.

Choice of source should also fit the speaker's style. For example, a lawyer with a down-to-earth style may find it far easier to quote Will Rogers or Mark Twain than Pericles or (my favorite) Marcus Tullius Cicero. A great danger in using quotations is that there is a natural propensity to overdo it. The advocate should never wrap himself in the quotations of others as a beggar might seek to enfold himself in the purple of an emperor (A bit too flowery, right? Maybe that's the point.) Too much reliance on the prose of others may lead your jury to doubt your sincerity. When a quote is used, it should, if possible, be spoken from memory and not read. If a quotation truly has meaning to a speaker, the jury will expect him to be able to deliver it as a part of seemingly extemporaneous jury speech. Of course, if a useful quotation is rather long or if you suffer from a poor memory, reading the quote may be better than omitting it.

Simply remember that the jurors have to believe that what you are saying matters to you as well as them. Make it your own. If you anticipate using a quotation in your jury argument, rehearse the delivery with a video or audio recorder. This will make your use of the borrowed thought less awkward.

Timing the quote for persuasive impact - While it is difficult to advise another person where to insert a quote in the chronology of the jury speech, you should always try to achieve the best order. Quotes are often most appropriate during the beginning or concluding portions of the argument.

Biblical quotes - In a country where a person's religion or lack of it is none of the government's business, one must be hesitant in including religious text in a jury argument. However, wisdom is not preempted by secular resources. There are some universal truths in Bible, the Koran, the Torah, etc., that should not be ignored in the search for justice. It's also a proven fact that a substantial portion of population professes to  believe in a God. Quoting from the Bible or other religious texts is disfavored by some jurisdictions. The decision to do so, even when it is permitted, is a dicey one. If you do it, do so with subtlety and sensitivity. 

     

 
10. THE CAPITAL DEFENDER ARGUING AGAINST THE DEATH PENALTY FACES THE             ULTIMATE TEST OF THE LAWYER AS PERSUADER -

Death, the undiscovered country from whose borne no traveler returns.*
Hamlet Act III, Scene I

I promise you if you find the defendant guilty of capital murder,
you won't be telling him anything he doesn't already know.
Prosecutor Lynn McCllelan
Chief, Trial Bureau
D.A.'s Office - Harris County, Texas

It's a plain fact that many defense lawyers in one of the approximately thirty-seven* death penalty jurisdictions can practice a lifetime without being involved in courtroom defense of a capital case. Most choose not to be. Indeed, when one looks at the big name lawyers, most of them wouldn't  defend a capital case with your ten-foot pole. One reason is that capital defendants don't have money. Another is that the chance of losing is great. Even though the number of lawyers involved is relatively small, the stakes at risk in capital trial litigation make it the ultimate test of the defense advocate's ability to convince a jury.

By last count, the following fifteen states have no death penalty: Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota,New Jersey, New Mexico, New York, Rhode Island, Vermont, West Virginia, Wisconsin (also D.C). Thirty-four of the remaining thirty-five states use lethal injection as the method of choice. Until February 8, 2008, Nebraska killed only by electrocution; on that date, in the Mata case, the Nebraska Supreme Court ruled that death by electrocution was cruel and unusual punishment under its state constitution.

Lashed by criminal violence, beset by fear at home and in the streets, furious at the bestiality of highly publicized murders, a substantial majority of the citizenry appears to support capital punishment. Aside from its popularity in thirty-five states, the death penalty is very much a part of the military and federal criminal justice system. In short, the death penalty is alive and kicking (no pun intended). See the Death Penalty Information Center  (1 - prosecutors), (2 - anti-death penalty), (3 - pro-death penalty), (4 - and from my home ground, the death penalty capitol of the United States). Be aware of Baze v. Rees, 553 U.S. 35 (2008) held that the risk of improper administration of the initial drug did not render three-drug lethal injection cocktail protocol cruel and unusual, and that the state's failure to adopt proposed, allegedly more humane alternatives to three-drug protocol did not constitute cruel and unusual punishment; the claim in Baze challenged the methodology of lethal injection in part because sodium thiopental, the first of three drugs typically used to cause death, may not be effective in causing the inmate to lose consciousness; if so, the claim was that the administration of the remaining two drugs, pancuronium bromide to paralyze the diaphragm and lungs and thus stop respiration, and potassium chloride to stop the heart and thus stop circulation, would be excruciatingly painful. In Hill v. McDonough, 547 U.S. 573 (2006) the USSC allowed the Civil Rights Act, Sections 1871 and1983 to be used to challenge the mode of execution.

To engage in debate over the necessity and admissibility of the death penalty is to touch on human values of the highest importance: the sanctity of human life, the preservation of order in society, and the achievement of justice through law. The capital defender who prepares for a penalty argument must address these values in a way that convinces the sentencing body that neither necessity nor the legitimate purposes of punishment justifies the imposition of the death penalty in the case at bar.

The defender's job on the death penalty issue is to appeal to each individual's innate reluctance to kill another human being. On the other side of the coin, studies concerning group absolution and our own common sense teach us that it is easier to kill if blame is spread across a group, e.g., a trial jury, that will mutually reinforce the decision to kill.  [Aside: Many of us who would not individually kill innocent men, women and children, condone it on a massive scale when it is done by others in our name, even when it is done during an unjust, immoral war launched by leaders who are corrupt.]

* The entire quote from Shakespeare's Hamlet: " Who would fardels bear, to grunt and sweat under a weary life, from whose bourn no traveler returns, puzzles the will and makes us rather bear those ills we have than fly to others that we know not of? Thus conscience does make cowards of  us all ..."

**Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Indiana, Illinois, Kansas, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, Wyoming PLUS U.S. Federal Govt. & U.S. Military.
SAMPLE QUOTATIONS

"It is a good thing for an uneducated man to read books of quotations."
Winston Leonard Spencer Churchill

The quotations and thoughts contained here are a scattered few of many hundreds that I have gathered over the last twenty-five years. See JACC. These reflect only my preference for a phrase. Perhaps this tiny list will serve as a nucleus upon which you will begin to build your own collection in a journal of eloquence. Here's another source of legal quotes you can print to begin your journal. Additional ammunition can be gathered in the reference collection of any local public library or at your local bookstore, e.g., Barnes & Nobles or Borders. The page on preparation of jury argument contains a slough of references to Internet sources of quotes. You can find many others using any search engine. My advice is simply to start you little journal of eloquence by burying yourself for a few hours in a collection of quotes. Pick the ones you like. Warning: It can become addictive. 

Anger - Anger is a state that starts with madness and ends with regret.  Anonymous

Do not plunge thyself to far in anger. Shakespeare (All's Well that Ends Well)

Appearances - Appearances can be deceptive. Things are not always as they seem.

Capital punishment no cure for crime - Capital punishment is as fundamentally wrong a cure for crime as charity is as a cure for poverty. Henry Ford

Character - Nor is it always in the most distinguished achievements that men's virtues or vices may be best ascertained; but very often an action of small note, a short saying, or jest shall distinguish a person's real character more than the greatest speeches or the most important battles. Plutarch

Circumstances - Sometimes a person is the victim of circumstances, and sometimes a person is the architect of circumstances. Anonymous 

Condemning others - What an absurd thing it is to pass over the valuable parts of a man, and fix our attention on his infirmities. Joseph Addison

Everyone is eagle-eyed to see another's faults and deformity. John Dryden

Each man can interpret another's experience only by his own. Henry David Thoreau

Confession - A guilty conscience needs to confess. Anonymous

Constitution weeping - If our Constitution is a "living document," as is often asserted, it must be weeping with shame.

Courage - One man with courage makes a majority. Andrew Jackson

Courts - ... there is one way in this country in which all men are created equal-there is one human institution that makes a pauper the equal of a Rockefeller, the stupid man the equal of an Einstein, and the ignorant man the equal of any college president. That institution, gentlemen, is a court. It can be the Supreme Court of the United State or the humblest J.P. court in the land, or this honorable court which you serve. Our courts have their faults, as does any human institution, but in this country our courts are the great levelers, and in our courts all men are created equal." Atticus Finch in Harper Lee's To Kill a Mockingbird

Crime - Crime is the antisocial form of the struggle for existence. Enrico Ferri

Dead - We owe respect to the living; to the dead, we owe only truth. Voltaire

Death penalty - Is there not blood enough upon your penal code? Lord Byron

Deceit (Deception) - I can smile, and murder whilst I smile. And cry "content" to that which grieves my heart. And wet my cheeks with artificial tears. And frame my face to all occasions. Shakespeare, Henry VI

People always overdo the matter when they attempt deception.

Nothing is easier than self-deceit. For what each man wishes, that he also believes to be true. Demosthenes

Delinquency - There is no single cause of delinquency, but certainly one cause is a feeling of insecurity on the part of young offenders. Among the factors contributing to insecurity are poverty, liquor in the home, father coming home drunk, strained relationships between parents, often accompanied by harsh language and quarrels in the presence of children - all these things generate fear and help lay the foundations for later crime. Reverend Billy Graham

Doing Nothing - The only thing necessary for the triumph of evil is that good men do nothing. Edmund Burke

The world is a dangerous place. Not because of the people who are evil; but because of the people who don't do anything about it. Albert Einstein

We can try to avoid making a choice by doing nothing, but even that is a decision. Anonymous

Doubt - Doubt is the vestibule which all must pass before they can enter the temple of wisdom. Walter Colton

Duty - Let us have faith that right makes right, and in that faith, let us to the end dare do our duty as we understand it. Abraham Lincoln

Enemies - If we could read the secret history of our enemies, we could find in each man's life sorrow and suffering enough to disarm all hostility. Henry Wadsworth Longfellow

Evil - It's hard not to want to render evil for evil. Anonymous

Excess -  Some people are stripped bare by the curse of plenty. Anonymous.

Facts - Facts are stubborn things. Alain Rene Le Sage

A fact in itself is nothing. It is valuable only for the idea attached to it, or for the proof which it furnishes. Claude Bernard

Every man has a right to his opinion, but no man has a right to be wrong in his facts.

Failure (omission) to act - Thou shalt not be a victim. Thou shalt not be a perpetrator. Above all, thou shalt not be a bystander. Holocaust Museum

Fear - Fear grows in darkness. If you think there's a bogeyman around, turn on a light.

Fear jingles like an alarm bell you can't shut off.

Finish job - With malice toward none, with charity for all, with firmness in the right as God gives us to the see the right, let us finish the work we are in ... Abraham Lincoln

Friends - When you are in real trouble, you find out who your real friends are. Anonymous

Honesty - Talking sensibly and honestly is not always easy. It means saying things that sometimes people don't like to hear. Adlai Stevenson

No legacy is so rich as honesty. Shakespeare (All's Well that Ends Well)

This above all: To thine ownself be true, and it must follow, as the night the day, thou canst not then be false to any man. Shakespeare (Hamlet)

Idealist - The idealist is the person who, upon discovering that a rose smells sweeter than a cabbage, assumes that it will also make better soup. H. L. Mencken

Ignorance - Ignorance never settles a question. Benjamin Disraeli

Injustice - In certain situations, there is nothing more unjust than equal treatment of unequals. Anonymous

Innocence - It is of more importance to the community that innocence should be protected than it is that guilt should be punished. John Adams

It is better five persons should escape punishment than one innocent person should die. Matthew Hale

It is always safer to err in acquitting than in punishing, on the part of mercy than on the part of justice. Anonymous

I would rather that twenty guilty persons escape punishment of death than one innocent person would be condemned and suffer captivity. John Fortescue

Insanity - Insanity is often the logic of an accurate mind overtasked. Oliver Wendell Holmes

Justice - Justice is the sum of all moral duty. William Godwin

The United States wins its cases whenever justice is done one of its citizens in the courts. Inscription in Attorney General's Rotunda, Justice Building, Washington, D.C.

Injustice is relatively easy to bear; it is justice that hurts. H.L. Mencken

The administration of justice is the firmest pillar of government. George Washington

Justice without compassion and understanding is not justice, but subtle injustice. Anonymous

Justice without force is powerless; force without justice is tyrannical. Anonymous

Charity begins at home, and justice begins next door. Charles Dickens

If we do not maintain justice, justice will not maintain us. Francis Bacon

Kindness - Civilization is just a slow process of learning to be kind. Charles L. Lucas

Laws - Laws grind the poor, and rich men rule the law. Oliver Goldsmith

Liberty - You can only protect your liberties in this world by protecting the other man's freedom. You can only be free if I am free. Clarence Darrow

Every so often we pass laws repealing human nature. Howard Lindsey

Mind - I think under our system it is time enough for the law to lay hold of the citizen when he acts illegally, or in some rare circumstances, when his thoughts are given to illegal utterance. I think we must leave the mind alone. Justice Robert H. Jackson

Moral issue - Greatness is the character of one who has looked through the confusion of the moment and seen the moral issue involved. Jane Addams

Myth - The greatest enemy of truth is very often not the lie - deliberate, contrived and dishonest - but the myth - persistent, pervasive and unrealistic. John F. Kennedy

Nonsense - You can't make sense out of nonsense. Anonymous

Nullification - Law and justice are not always the same. When they aren't, destroying the law may be the first step toward changing it. Gloria Steinem

Omission - duty to act - Duty arises out of the power to alter the course of events. Alfred North Whitehead

Open mind - An open mind is a good thing so long as you don't keep it open for so long that the truth passes through it and exits without stopping along the way.

Minds are like parachutes; they work best when open. Lord Thomas Dewar

Opinion - Do not condemn the judgment of another because it differs from your own. You may both be wrong. Robert Carroll

The foolish and the dead alone never change their opinions. James Russell Lowell

The man who never alters his opinion is like standing water, and breeds reptiles of the mind. William Blake

Truth is opinion that still survives. Anonymous

Laws that do not embody public opinion can never be enforced. Elbert Hubbard

Perfection - A man can travel far and wide - all the way to shame or glory, and back again - but he ain't never gonna find nothin' in this world that's dead solid perfect. Dan Jenkins, Dead Solid Perfect

Pointing the finger of accusation - When a man points his finger at someone else, he should remember that four of his fingers are pointing at himself. Lois Nizer

Prejudice - There are only two ways to be quite unprejudiced and impartial. One is to be completely ignorant. The other is to be completely indifferent. Bias and prejudice are attitudes to be kept in hand, not attitudes to be avoided. Charles P. Curtis

Opinions founded on prejudice are always sustained with the greatest violence. Francis Jeffrey

Consciousness of being universally judged to be inferior leads to loss of self-respect, which in turn often brings about loss of a sense of responsibility to society. Anonymous

The blind prejudice of all the prejudgments that have driven men to brutality is prejudice with respect to race. When men are prejudiced, they are not just. Where there is no justice, there can be no enduring peace. Anonymous

Prejudice is a great time saver. It enables one to form an opinion without getting the facts. That has its advantages, but they are not on the side of intelligence. Herbert V. Prochnow

Quick to judge, quick to anger, slow to understand - ignorance and prejudice and fear walk hand in hand.

Public officials - Public officers should owe their whole service to the government and the people. Rutherford B. Hayes

Self-deception - Unto thine own self be true, and it must follow as night the day, thou canst not then be false to any man. Shakespeare, Hamlet

Sin - Many are without punishment, none are without sin. John Ray

Some rise by sin, and some by virtue fall. Shakespeare (Measure by Measure)

Solutions - It's so much easier to suggest solutions when you don't know too much about the problem. Malcolm Forbes

To do good is noble; to teach others to do good is nobler, and no trouble. Mark Twain

Truth - Truth is an enemy only to those who have lost the gift of receiving it as a friend. Anonymous

There are no whole truths; all truths are half-truths. Anonymous

The purpose of this trial is confer upon you the whole truth and nothing but the truth, not to conceal it. The truth is only found by careful examination of all the evidence from top to bottom. When you buy a package of strawberries, don't you always flip it over to look for rotten berries on the bottom. To find the truth in this case, you've got to look at the whole package.

Youth - He was so young he could hardly tuck his shirt-tail in.







ARGUMENTS THAT SEEK T0 PERSUADE
THE SENTENCING BODY NOT TO RETURN A DEATH VERDICT

Here are a few samples of things that one might say at the punishment argument in a capital case where the death penalty is one the table. Some of these are geared toward states where life without parole is the alternative punishment to death. This is relevant in such jurisdictions where future dangerousness is also an issue in the calculus because defense counsel is allowed to argue that a "life sentence without parole" means that a one convicted of a capital crime will be in prison for life. See Simmons v. South Carolina,  512 U.S 154 (1994). Look at some of the death penalty web sites (1) for material that you can turn into an eloquent argument.

Justice measured by how it treats the lowest - Justice in a society is measured more by how it treats its worst men than how it treats its best.

Death penalty as irrevocable - One aspect of the death penalty that we can't ignore is that it is absolutely irrevocable. Once somebody is put to death, once (describe briefly the relevant manner of death, e.g., once the potassium cyanide pellet is dropped, once the lethal poisons flow into the vein,etc.) and the agony of the death throes is over and the person is pronounced dead, that's the end of it. That's the end of the case for (name the defendant). No matter what might happen in later years, it wouldn't matter because once you've killed him you can't bring him back.

Chances of executing wrong person - Some people believe that human life is sacred and that society has no right to take it. The rules of our government doesn't allow those folks to serve on a death penalty jury. But even if you don't believe that every human life is sacred, the thing that should nag at your conscience is the thought that you might be condemning the wrong person to death. As a matter of history, don't we know that it happens? Don't we know that we've executed people for crimes they didn't commit? Shakespeare in his play Hamlet described death as "the undiscovered country, from whose bourne no traveler returns." Before you send another human being into oblivion, you should be absolutely sure in your own conscience that it's the right person.

Innocent people mistakenly convicted - We have all read of cases where the wrong person has been convicted and imprisoned or executed for something they didn't do.(1)

Two wrongs don't make right - Two wrongs don't make a right. You have spoken. We can't argue with your decision convicting the defendant of being guilty of this crime that carries with it the possibility of a verdict of death. We may disagree and believe that the defendant is not guilty, but we cannot argue with your verdict of conviction. You have said that he (describe the capital offense, e.g., murdered a police officer, intentionally killed a convenience store operator  during a robbery, etc.). And that brings us to this stage of the proceedings where you must decide the punishment. If in fact he killed the victim, we cannot bring the victim back by killing the defendant. Two wrongs don't make a right.

All lives bound together - Each of us is a thread in the single garment of life.

Which political regimes execute - Who is to say if capital punishment is  civilized? This state recognizes it. As a matter of common knowledge, execution is popular in quite a few countries (Cite examples from the current list kept by Amnesty International, e.g., Egypt, Iran, Iraq, Saudi Arabia, Syria, Viet Nam, Uganda) Of course, the English, the Scandinavians, the Germans, the French, the Spanish, the Australians, the Irish, the Italians, and our neighbors to the north and south, the Canadians and Mexicans, are among the many countries that don't allow executions.     

Defendant's family and friends as victims - How many victims do we want as a result of the killing of (name the victim of the capital crime)? There is more than one victim here. There is no disputing the sorrow and anger that the victim's family and friends feel at his passing. But there are other victims on the opposite side of that equation. The members of (name the defendant) extended family have suffered. If you take his life, you will add to the list of unwitting victims. You'll add  (name the defendant) wife to the list of victims; you'll add the children of (name the defendant) children to the list of victims.
The pagan Romans thought the only solution was to kills the Christians. Every time you look at the history of state authorized killing, think a little bit harder about what you are being asked to do in the name of the government. 

Killing people who kill people - Wouldn't you think that most of, if not all, try to teach our kids that it is wrong to kill other people. Whether you are a religious person or an atheist or an agnostic, most of us take it as a core moral that human life is important. A few years back I brought my (state the name and age of the child, e.g., "my twelve-year-old son, Ted") down here to hear me argue for another man's life. On the way down the boy asked me, "Dad, why do we kill people who kill people to show that killing is wrong?" That question and the answer to it goes to the core of what we are doing here today. Why do we kill people to show that killing is wrong?
Yesterday, that same boy, now (indicate the current age) asked me, "Are they going to kill (name the defendant)? I said, "I don't know."

Taking another life doesn't show respect for human dignity - The prosecutor says to you that by your verdict of death you can show your respect for human dignity. I ask you, how by your verdict of death as to (name the defendant) can you show your respect for human dignity? How can you ever show your respect for human dignity by taking another life? How can the calculated killing of (name the defendant), a human being, be anything other than a denial that he is human?

Sympathy - Sympathy is a virtue that is seldom observed in nature. It's unique to human beings. It's perhaps the greatest treasure of the human heart. Only love could possibly be more precious.

Reply to prosecution quoting from Old Testament - Did you take notice when the prosecutor referred to the Bible? Did you notice that she chose only to refer to Old Testament concepts? In the Old Testament it says, "If there is anyone who curses his father or mother, he shall be put to death; if there is a man who commits adultery with another man's wife ... the adulterer and the adulteress shall be put to death; if  there is a man who lies with his father's wife, he has uncovered his father's nakedness, both of them shall be put to death; if there is a man who lies with his daughter-in-law, both of them shall be put to death: they have committed incest; if there is a man who lies with a male as who lies with a woman, both of them have committed a detestable act: they shall be put to death; if there is a man who marries a woman and her mother, it is immorality and both of them shall be burned by fire."

It's probably safe to assume that many of you know a bit about Biblical history. If you know your Bible, you know that under the Old Testament, in times when there were no prisons and prison sentences, the death penalty was attached to some acts that would be considered misdemeanors today. However, you also recall the First Commandment God gave was, "Thou shalt not kill." There were no qualifiers put on that commandment whatsoever.

Brother's keeper - We are sometimes taught that it's our job on this earth to look out for ourselves. Self-survival - that's the essence of the law of the jungle, the law of the birds and beasts, take care of yourself and your tribe, no matter what happens to those outside the unit. Someone asked the question several thousand years ago, "Am I my brother's keeper?" Have we as a people ever answered that question? Are we under any moral or legal obligation to others?

Defendant stands in valley of death - (Name the defendant) stands in the Valley of the Shadow of Death. When you think about condemning him to die, there is no room for error in your decision.

Defendant has skills he could use to teach young inmates - You know from the evidence that (name the defendant) has some useful skills. (State the nature of the skills,e.g., "He is a carpenter and a welder.") If you see fit to assess him a life sentence, he could help teach young inmates these skills. He could help them have a chance at a productive life when they serve their sentences.

Death sentence creates death row hero - In recent years we have seen the grim renaissance of the executioner. We each execution, we create a new death row hero. We focus attention on the offender's fate rather than on the victim. Every time a death sentence is meted out, the jury unwittingly creates a new death row hero, a celebrity of sorts. The enormity of the crime becomes overshadowed by the enormity of the punishment. Don't make a death row hero out of (name the defendant). With a life sentence he becomes just a faceless number living the rest of his life in a cage. No stories will be written about him. No one will care if he lives or dies. Don't give him celebrity status.

Passive death by lethal injection - Human nature is such that we die more bravely on our feet. It would be easier on a condemned man to show courage and composure in his last moments if the final act required of him were a positive one such as walking the scaffold to the hangman's noose rather than passively waiting the prick of the needle.

Doesn't take bravery or courage to vote to kill a person - Perhaps the prosecutor will tell you that the times in which we live require the courage and bravery on your part to vote the death penalty. Each of us has a different definition of what it takes to be courageous. But I ask you: Do you see courage and bravery in voting to deliberately and premeditatedly kill another human being?

Killing for vengeance not deterrence - pickpocket story - Why do we kill? If you cut away all the fat, it is probably for retribution and vengeance. It couldn't be much of a deterrent because we've had he death penalty for years and there are hundreds and hundreds of people on death row. Many countries have had the death penalty. England once had the death penalty for 172 offenses. They put adulterers to death. They would put pickpockets to death. The interesting thing is that they had public executions. They would bring a pickpocket out, convict him, hang him by the neck in public so that the crowds could gather around and assemble and see the fate that would befall pickpockets. Do you know what? They found out that when they executed pickpockets there were more people at the execution getting their pockets picked than any other time. It doesn't deter crime. That's not the question today, whether it deters crime or whether its just retribution. The question is whether, under the circumstances you have heard, this man should be put to death.

Death issue is juror's decision alone - If you decide that (name the defendant) is to die, it will be your decision alone. It is not the judge's decision. In this state the judge simply pronounces the sentence according to your verdict. It is not the executioner's decision. The executioner simply carries out your command. The decision is yours and yours alone.

Jurors can't shift responsibility - To those of you who, as you sit here now, tend to agree with me, bear with me for awhile, for I too know that brevity is the soul of wit. To those who of you who may tend to disagree with me as you sit here now, keep and open mind. To those of you who have formed no opinion at all at this stage, but are waiting to hear my remarks, I hope my words will convince you that this is not a death penalty case. Because it is the opinion of the twelve men and women who sit in front of me who make the decisions that count. It is your decision alone that counts.

You can never shift the responsibility for the sentence in this case. You can never explain that the rest overpowered you, because you, each and every one vote, and only you and you alone can cast that vote. If your personal vote is that (name the defendant) must be sentenced to death, it must be done by each of you as an individual. It must be your individual, deliberate, cool, premeditated act and no one else's. 

Prosecutor's power to seek the death penalty - We all know that the prosecutor decided to seek the death penalty in this case. He didn't have to do that. If they don't file a notice of intent to seek death, the defendant gets an automatic life sentence. Have you ever asked yourself what criteria the prosecutor uses to exercise this omnipotent power to decree that the death penalty will be sought against some men who commit capital murder and not against others. I don't have that unfettered power to make that decision and I wouldn't want it.

Death is death - Death is death, regardless of what form it takes. You cannot insulate yourself by saying that you are a member of this jury and that you only voted that (name the defendant) be (state the manner of execution, e.g., given a lethal injection). The end result is the same. If you vote to authorize somebody else to (state the manner of execution, e.g., inject the lethal chemicals), it is just like you are giving the injection. You are not going to be there, of course. No one will require you to watch. But under our system (describe the manner of execution, e.g., the injection cannot be given or the switch cannot be pulled) unless you (state the action the jury must take to return a death verdict, e.g., answer the special aggravation issues "yes"). If you do so, you are saying, "Let him die by (state the manner of execution,e.g., lethal injection).

Injection of fatal chemicals (1), (2if prosecution has its way - (Gesture to the prosecution table) They want you to die an undignified death, (call the defendant by his given name). It'll gratify their wishes if and make them feel good about their job and make their argument a winning one if they come for you some day as you sit in a prison cell. They'll strap you to a cart and roll you into a dark room up against a wall. And there will be long tubes. They'll hook the tubes to your arm, and you will watch as the liquid circles through the tubes, plain as death. You won't be able to do anything about it because you'll be strapped down tight. You'll die from an intentional, premeditated act of poisoning if they (indicate the prosecution table) have their way.

Injection of fatal chemicals - syringe demonstration - The executioner will fill big hypodermic syringes with sodium thiopental, an anesthetic and depressant designed to cause unconsciousness; pancuronium bromide, a paralyzing agent similar to the poison used on arrow points by South American Indians that paralyzes the inmate's lungs and the diaphragm muscle; and potassium chloride, a salt that stops the inmate's heartbeat by inducing cardiac arrest. The executioner will inject these chemicals with a syringe like this (Display a facsimile syringe.) into an IV that will flow into (name the defendant) veins. His face will tighten and tears will come to his eyes. He may whimper. Perhaps he will make no sound. If the sodium thiopental works he may be unconscious. And if it doesn't work, we won't know if he is conscious because the pancuronium bromide has paralyzed his lungs and diaphragm thus preventing him from crying out. If he's conscious, he'll begin to feel death creeping in. His breath will come in wheezing rasps. His fingers will tremble. Then his body will stiffen and move no more. A doctor will step forward, place a stethoscope on (name the defendant) chest, shine a penlight into his eyes, and say "I pronounce this man dead." See Baze v. Rees, 553 U.S. 35 (2008)  upholding the Eighth Amendment constitutionality of the three-drug cocktail lethal injection.

Describing the official procedures followed in an execution - The (name the state) department of corrections follows certain official procedures in an execution. (Determine the method of execution used in your jurisdiction and describe with precise accuracy the gruesome mechanics of the procedure used to execute inmates in your jurisdiction, e.g., The prisoner is moved from the Ellis Unit to the Huntsville Unit, about thirteen miles away, where the death chamber is located. The inmate is transferred early in the morning and taken to one of eight holding cells adjacent to the death chamber. During the day, the prisoner is entitled to visits from the prison chaplain or his personal spiritual advisor and his attorney and approved family and friends. After 6:00 p.m., only the chaplain is allowed to visit. The final meal is served between 6:30 and 7:30 p.m. At the hour of execution, the inmate is taken from his holding cell and walked to the death chamber where he is secured to a hospital gurney, or cot. One of his arms is fastened to a small board protruding from the gurney. A medical assistant then inserts an intravenous catheter into a vein in his arm. The witnesses are then allowed at that point to enter the viewing area of the death chamber. They stand behind a rail separating them from the inmate by four or five feet. The inmate is then allowed to make a final statement. When the statement is completed, the warden announces that the execution can proceed. The executioner stands behind a wall containing two small covered windows, one connecting the the tube of the IV and another for communication. At the warden's announcement, the executioner injects a neutral solution into the prisoner's arm. Then he injects a fatal combination of sodium thiopental; Pavulon (pancuronium bromide), a muscle relaxant; and potassium chloride to stop the heart.) [Note: Every state employing death penalty should have a official execution protocol that will set forth specifically the mechanical procedure employed in putting condemned prisoners to death; if your state does not have such an official protocol and leaves the mechanics to the discretion of the State Department of Corrections, a systemic challenge should be made to the administration of the death penalty on Eighth Amendment grounds. See, for example, the Maryland case of Vernon L. Evans Jr. where a state court held that the checklist of lethal injection procedures was a regulation that had to comply with the requirements of the state administrative procedures statute.]

Description of execution by electrocution (1) - The prosecutor talks much about the death penalty and whether there are mitigating circumstances sufficient to preclude imposing a death sentence. That's lawyer talk. What the prosecutor is really asking you do is to kill (name the defendant). It's as simple as that. S/he is asking you asking you to cause (name the jurisdiction) to pull a switch that will put 5000 volts of electricity through the body of of the (name the defendant). Not the way (name the defendant) looks as he sits here today, but only after his head is first shaved so that they can put on the oil which will allow the electricity to flow more surely through his body. Not the way he looks today, but after they put him in a diaper, because when you are electrocuted you lose control of your bodily functions and they want to make sure that the death room is clean. Not the way he looks today, but after they put a mask over his head, not so he can't see what is going to happen, but so that the witnesses who by law view the electrocution can't see his eyes bursting from their sockets and blood gushing from his nose as the voltage hits him.

Description of execution in the gas chamber (1) - In the gas chamber, a person is strapped in a chair. The guards close the door and seal it. Then they drop the little pill into a bowl of acid. The fumes start to come up. Because of the straps, the condemned is not able to move away from the fumes. He may try not to breathe, but he has to. Then, slowly and painfully, he strangles to death. It would not be a sight most of us would want to witness. It is even a horrible thought to put in your mind, but it is a necessary thought, because you have to think about the consequences of a death verdict. You have to think about all the bad things: the straining against the straps, the gagging, the loss of all bodily functions. Is that what you want for a human being? Is that what you want? Is it? Perhaps the decision, even though it is your decision, is best left for God, not man.

Death by hanging (1) - (Describe the gruesome mechanics.)

Death by firing squad (1) - (Describe the gruesome mechanics.)

Last public execution (hanging) described - The last public execution here in the United States was in 1936. The description of it was as follows: "This was the hanging of a 22-year-old black man named Rainey Bethea at Owensboro, Kentucky. Bethea had been convicted of the slaying of a 70-year-old white woman. The hanging was organized by the county sheriff, a woman named Florence Thompson. She deliberately had the scaffold erected in a field so that thousands could witness the execution, which she set for sunrise. So many people invaded Owensboro for the spectacle that terrified local blacks fled the town, especially after receiving lynching threats from drunken white revelers. All night hanging parties were the order of the day. By 5:00 a.m. the following morning, 20,000 people were in the field, including over 200 sheriffs and deputies from various parts of the United States. Only six blacks attended, two of them women. When the hangman was testing the trap door, it snapped open to the loud cheers of the crowd. Bethea arrived at 5:12 a.m., accompanied by a Catholic priest. When the hangman pulled the bolt, there was a loud cheer. The still warm body was attacked by souvenir hunters. They tore off pieces of clothing; some even attempted to cut pieces of flesh from Bethea's dangling body. Hundreds of spectators thronged around the scaffold while two doctors examined the body with stethoscopes. There was a large groan when the doctors detected heart beats. At 5:45 a.m., Bethea was pronounced dead. At that moment, several people began fighting over the hood that covered his head."

Life sentence rather than death -calculating number of years defendant will not have a single moment of liberty - (Name the defendant) is (state the defendant's age). Think what it is going to be like for the rest of his life to have a bell rung in the morning at 6:30, to roll out of his cot or bunk, to have 30 minutes to perform his chores, to be regimented minute by minute, hour by hour, day by day, for the rest of his life. Right now he's only (state the defendant's age). What is his life expectancy? Perhaps, 65 or 70 years, something like that? Let's assume that (name the defendant) dies at (state the hypothesized age, 65, 70, etc.). That's (state the number of years) during which (name the defendant) will not have one waking moment of his own. The only time he will have time that he can call his own is when he is sleeping, and, even then, he can't escape the ghoulish nightmares of this crime and the fate that awaits him after death. Isn't that enough punishment for one group of humans to exact on another?

Propriety of sentence of life without parole - By your verdict of conviction, you've already condemned (name the defendant). He is already dead in the free world, in your world and mine. He will never walk the streets again with his (indicate the family members or relatives, e.g., daughter, son). You've already guaranteed that. Isn't life without hope of parole a sufficient punishment? We're not dealing with a law that gives the possibility to parole to people convicted of crimes. The law that governs this case guarantees that the key is tossed away and (name the defendant) will never ever walk the streets again. That decision is made. The only real question that you have to grapple with is whether one killing justifies another.

Defendant will die in prison in ordinary course or by execution -  You have already decided that (name the defendant) will die in prison. That decision was made when you rendered your verdict at the guilt stage of this trial. Once you decided that s/he committed this crime, you also decided where he would die. He is either going to die in prison as the result of the ordinary course of of his life or he's going to die in a "death chamber" (describe the chamber in your jurisdiction, (1) e.g., a little green room, a room that has windows for people to watch him die, witnesses who care to come to such a thing, a room that has a chair with straps on it, and a little bowl full of sulphuric acid under it.) And he'll die when (indicate the action that kills, e.g. somebody drops a pellet of cyanide into the acid). How he dies in prison is your decision.

Life without parole as sufficient deterrent - If deterrence is what is needed, the best that can be said about the death penalty is that it is an effective deterrent for one person. But is not life without parole sufficient for that purpose? By asking for your compassion, for your mercy, by asking you to spare the life of (name the defendant), I don't want you to think for a moment that I am asking for leniency, because I am not. There is nothing lenient about being condemned to spend the rest of one's life, day after day, month after month, year after year, behind prison walls in a felon's cage. By your verdict, the defendant, (name the defendant) will never know what it like to sleep in an unlocked room. For the rest of his days on this earth, his world will be circumscribed by the cold, gray stone walls of a prison. He will never again be free to walk among the hills on a sunny spring day. He will never be free again to take his children to the park, to the zoo or to the movies. He will never again enjoy the true meaning of the word "freedom." At a minimum, by your verdict, (name the defendant) will enter state prison with no possibility of ever being considered for parole, with no possibility of ever coming out of prison other than feet first in a hearse. In a way, a sentence of life without parole recalls the words that Dante used in describing the gates of Hell. Above them is written: "Abandon hope, all ye who enter."

Life without parole - Let's talk a little bit about "life without the possibility of parole," because sometimes the phrase gets thrown around like it's a piece of cake, like there is nothing to it. Let's think about it for a moment. Let's think about having to spend the rest of your life in a five foot by eight foot concrete cell with a metal door, a steel toilet and a cot. (Add if applicable: And you share this cage and its facilities with a stranger chosen by prison authorities to be your roommate.) It is like living in your bathroom for the rest of your life with no way to get out. You sleep in it. You eat in it, unless you are allowed to go to chow hall. You live your life in a tiny room (Add if applicable: with someone else.) Somebody tells you for the rest of your life when to get up, when to shower, when to go to bed. Someone else tells you what you can read. Someone tells you what you can eat. Imagine in your mind never being able ever to eat a home cooked meal or to go a hamburger joint or a fast food outlet or a restaurant. You dine on institutional food for all your days. You can't go to a movie, to the theater, to a baseball game, for a walk in the woods or on a beach, or just for a simple drive in the country. Some of you love nature and the outdoors. Imagine never being able to hike or hunt or fish or even to look up at the sky. How about only being able to see the people that love you and have stuck by you during visiting hours with somebody else standing over you, monitoring you under constant surveillance.

Value of defendant's life as human being - There is value to human life. We wouldn't be here today if we didn't consider (name the victim) life to have great value. But, by the same token, (name the defendant) life is also valuable. He had not forfeited the value of his life by the terrible acts that have been attributed to him. Despite what the prosecution might say, he's still a human being.

Value of life - baptism analogy - (Provide a personal family experience from your own life that highlights and/or contrasts with the defendant's deprived life, e.g., "Last Sunday my little boy was baptized, and as I held him over the baptismal font and watched the priest pour water over his forehead, and, for some reason, I thought of (name the defendant). There were twenty-five family members there - all for my little boy, and I thought, (name the defendant) never had this. I thought, we are celebrating the value of my little boy's life and this week I must defend the value of another human being's life. It does not make sense to say that life is so precious in a three-month-old child and that it is without any value in a (state the defendant's age) man/woman.)

Weighing aggravating and mitigating circumstances not a mechanical process - Mitigation is not a numbers game. Its not a situation where we can say that stabbing weighs three pounds, a killing weighs two pounds, and background is one pound. The weight to be given to each of these aggravating and mitigating circumstances must come from three places, from your brain and its power to reason, from your heart where compassion and understanding reside and from your gut where your intuition and instinct guide you. If we stop using our heads, our hearts, and our guts to make decisions about the importance of these life/death factors, we lose our dignity and our right to call ourselves civilized.

Answering life/death question not a clerical act - In effect, the prosecutor told you in her argument that your function is merely clerical - look at the circumstances in aggravation and look at the circumstances in mitigation, add them up, balance them, and there is your decision. It's not that simple. Life is sacred. Because human life is valuable, the decision whether or not to kill another human being can never be reduced to a simple clerical function.

Jury instructions - The judge had told you (or when the punishment arguments have been completed his Honor will instruct you) about the law of punishment that applies at this final stage of deliberations. This is the time that you must decide whether or not to issue a death penalty for (name the defendant). You are instructed by the court that (indicate and explain the aspects of the punishment instructions that work to the defense's benefit, e.g, instructions re mitigation.)

Last words spoken for defendant - These are the last words that will ever be spoken in this courtroom on behalf of (name the defendant) before you have to make a decision whether he lives or dies. How do I help you in making this enormous moral choice. At the outset, even though I have been a lawyer for (indicate the number of years) I need to tell you that I feel woefully inadequate do this. I just don't know the right way of reasoning with you, pleading with you, maybe even begging you, for this man not to die. For the last (indicate the period of time) I have gotten to know. I am not ashamed to tell you he has become my friend. I have become his advocate - the person who speaks on his behalf, as his representative, to you. But, as his friend, I also want to speak in his behalf, for his benefit and in his interest, in talking about what you should do with him. So in the next few minutes that are allotted to me, I hope you will understand what I am saying comes not just from my head but also from my heart.

Verdict during punishment hearing different from guilt stage -  In order to convict the defendant all (state the number,e.g., twelve) of you have to come to a unanimous decision. In order to find an accused person not guilty, all (state the number, e.g., twelve) of you would have to come to a unanimous decision. So with respect to to finding him guilt of a capital crime, all of you have come to a unanimous decision to find that he did what he was accused of doing. That decision, "Did he do it?" you have made. The crime that you have convicted him of is eligible for (indicate the permissible punishment options for the capital offense, e.g., one of two punishments - life without parole or death by lethal injection). That's what your verdict at this stage of the trial is about. You are to decide the issue of punishment, not guilt. All (state the number, e.g. twelve) of you have to agree unanimously if you want to kill him. But if any one of you decides that you don't want to kill him, you can sign the verdict that says, "We can't unanimously agree that the death penalty ought to be imposed" (or vote "No" to the special issue). That is why I say these deliberations are different from those at the first part of this trial, the guilt hearing. You can render a verdict without sitting in there for days until you come to a unanimous verdict. That's the difference. If, when you go back to the jury room, one or more of you say, "I or we don't want to kill (name the defendant)," you have the option of signing the verdict that reflects your reasoned judgment, the verdict that says " We can't unanimously agree that the death penalty ought to be imposed." Each one of you has the individual power not to kill (name the defendant). You have that power in your signature. You have the power to go back to your family and to say, "I sat on a murder trial involving a tragic death, and it was a terrible and heart-wrenching experience. But I decided by signing the verdict (or voting on the special issue) to spare the life of (name the defendant). I decided by my verdict not to kill again. I stopped the carnage, and, at the same time, I condemned him to a felon's cell for the rest of his life." You have the power to say to your family that you did justice and that you were responsible for stopping any more blood from being spilled.


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Goldberg
murphy
The classic lethal injection film.