Over the objections of Justices Stevens and Breyer, the Supreme Court has denied cert in Kelly v. California and, with Justice Souter joining, Zamudio v. California, two cases involving the use of videos to capture the essence of the loss of a human in order to convey to a jury what it means to murder someone.  From SCOTUSBlog, via Doug Berman,

“In the years since Payne was decided,” Stevens wrote Monday, “this Court has left state and federal courts unguided in their efforts to police the hazy boundaries between permissible victim impact evidence and its impermissible, ‘unduly prejudicial’ forms….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.”

In the past, it would have been impossible for those of us on the outside of these cases to appreciate what the dissenting judges were talking about, or what the true nature of the evidence at issue meant.  But as technology has invaded the sanctum of the Supreme Court, this is changing.  The video in the Kelly case has been made available for all to see.  It takes a while to download, and about 20 minutes to watch. 

Having never watched a death penalty video before, I had no idea what to expect.  It was devastating.  With soft, almost religious music playing in the background, the video followed the victim through photographs and some video through her life.  The voice over was minimal, describing the age and some occasional details about the photographs.  It enabled a viewer to see how a person grows, enjoys life and exists within a family.  It makes someone very real. 

At the end of the video, it shows the plaque on the grave of the young, happy, smiling life you’ve just watched.  It then cuts to another place, open sky and a winding river with a lone rider on horseback, and described this as the heaven that one would hope would be the final resting place for this beautiful young woman.

Knowing nothing more about the crime, about the murder itself, whether brutal or almost accidental, calculated or thoughtless, about the type of person who chose to take the life of this young woman, it is impossible not to be deeply moved.  This video will bring tears to the toughest macho man.  It is certain proof of the devastating pain, horror and pointlessness of murder. 

The video is meant to accomplish this task.  I don’t know whether it was professionally done, handled in some psychologically effective way to achieve a depth of empathy that could never otherwise be conveyed.  But make no mistake that it will cause anyone except the staunchest anti-death penalty supporter or psychopath to believe that execution is the only proper penalty for the crime committed.

Is this fair?  Is this right?  These are very difficult questions to answer once you’ve seen this video.  On the one hand, there is little doubt as to their impact, and that they convey to a death penalty jury more effectively then words every could what has been lost.  To call it a “a heavy thumb on the prosecutor’s side of the scale” doesn’t begin to capture the weight this video evidence has.

On the other hand, it is a flagrant appeal to pure emotion.  It begs certain questions about the imposition of the death penalty that need answers.  What if the victim didn’t enjoy a wonderful childhood, and has no photos of happy days and loving relatives?  What if the victim is unattractive or a miserable person, or was raised in squalid surroundings?  Is their life less consequential?  Is their murder less horrific?

The appeal to emotion is prejudicial to the rights of the defendant.  The death penalty is not to be imposed because we feel deep empathy for the victim and her family, but upon a weighing of the extenuating and mitigating factors.  The video’s purpose is to overwhelm all other factors, and it accomplishes this purpose.  The question is not whether it’s prejudicial, but whether it is unduly prejudicial.

From one side, I can appreciate the argument that the truth, that reality even if displayed in a way that overcomes all other considerations, is not unduly prejudicial.  It is, perhaps, precisely prejudicial. 

From the other side, I can appreciate that the defendant will never be able to present evidence to overcome the empathy, to counter the life lost with the life in issue.

This is an extraordinarily difficult issue.  The question is not whether you favor the death penalty, but where the death penalty exists, whether this is the proper evidence to present to a jury to reach a reasoned decision of whether to impose it in a particular case.

The dissenters on the Supreme Court are entirely in the right here.  The is a matter the truly needs determination and guidance, and the Supreme Court’s denial of certiorari is an abdication of responsibility.  Regardless of which way the court would come out, they should have taken the cases, struggled with these extremely difficult questions, and done their job.  Instead, they dodged this very difficult problem and left us hanging.