On August 26, 1998, Jeremy Gross robbed a convenience store.  He had worked there part time, and knew the clerk, 24-year-old Christopher Beers.  There was little finesse to the robbery.  Gross and an accomplice marched into the store, and Gross shot Beers in the chest and stomach, then followed him into the back office and shot him in the face as Beers pleaded, “Why, Jeremy, why?”  Gross told him to shut up.  After the two robbers fled, Beers managed to stand up and shuffle over to a pay phone, where he collapsed and died. 

All of this was captured by the store’s surveillance cameras, and after viewing it, the prosecutor announced that “there isn’t a jury in the world” who wouldn’t impose the death penalty for the crime.

That didn’t happen, and Alex Kotlowitz’s story about the case five years ago in the New York Times Magazine is a classic recounting of how defense attorneys use mitigation experts and evidence to gain life sentences in cases where death would have been the inevitable result just a decade ago.

But there’s a flip side to that, it turns out.  Sara Weir was only 19 years old when she was raped and murdered.  Douglas Kelly, her killer, was easily convicted, but the salient legal issue emerged during the penalty phase, where, as the defense brief explained, the prosecution introduced 

a twenty-minute videotape prepared and narrated by the nineteen-year-old victim’s mother, consisting of a montage of dozens of still photographs and video clips depicting the victim’s life from infancy to the time of her death, closing with a shot of her grave and stock footage of horsemen riding through the countryside where she was born, described by her mother as “the kind of heaven where Sara belongs,” and set to the music of the artist, Enya. 

Up until 1991, the Supreme Court banned victim impact testimony in death penalty cases for fear that they might have an unduly prejudicial effect.  That changed in Payne v. Tennessee, where the Court held that such evidence was permissible to give the jury “a quick glimpse of the life petitioner chose to extinguish, to remind the jury that the person whose life was taken was a unique human being.” 

Since then, there have been decisions on victim impact testimony all over the lot.  A video of the victim’s family at a Christmas gathering was okay, as was a video of the victim playing with his children.  A 27-minute video accompanied by “evocative music” was too much, though, and a Texas court held that a 17-minute video montage exceeded Payne’s limits, too, noting that ”the punishment phase of a criminal trial is not a memorial service for the victim.”

In fact, whether the video meets constitutional muster sometimes depends upon the musical choices of the videographer.  The “evocative music” in that 27-minute video was songs by the Beatles and James Taylor.  The court in that case, though, had described the music as “stirring,” and that was enough distinction for the California Supreme Court in Kelly, noting that in contrast the Enya music was “generally soft, not stirring,” with most of the words unrecognizable.

Turns out Enya doesn’t get a free pass: she’d also been one of the featured artists on the 17-minute video that the Texas court rejected.  She may not be the real culprit, though; the video concluded with Celine Deion’s “My Heart Will Go On,” from the Titanic soundtrack.

No, I am not making that up.

Now, it may be that an argument could be made that this is simply leveling the playing field.  After all, if the defense can introduce all kinds of evidence about the defendant’s childhood and family, why shouldn’t the prosecution be able to introduce all kinds of evidence about the victim?

There are a couple of problems with that approach, though.  The first is that it injects into the calculus of capital punishment the idea that some victim’s lives are worth more than others.  Would Douglas Kelly be less deserving of death if he’d chosen to rape and murder a 37-year-old crack whore instead?  If he had, do you think her mother would have been able to put together a 20-minute video?

The other problem is that it introduces more arbitrariness into a system in which arbitrariness is the key problem.  As one commentator noted, the death penalty isn’t inflicted on the worst of the worst, it’s imposed on the unluckiest of the unlucky.  Bad lawyers or bad judges or bad juries are going to do in more defendants than bad facts. 

So on top of that you’re going to add another layer, where whether death results might depend upon the creative skills of the victim’s family and, indeed, the wisdom of their music choices. 

It’s going to be a while before this gets straightened out.  Kelly had petitioned the Supreme Court for review, giving them the first opportunity to take another look at this since Payne came down 17 years ago.  Last week, the Court denied certiorari, with three judges — one fewer than necessary to grant review — dissenting.