Actually, BK doesn't say it is a mitigator. The DEFENSE says it is a mitigator and BK is saying DM testimony backs that up. There is a difference.
Seems like part of the problem is that folks hear "mitigator" and think it means "mitigating."
To prove a mitigator exists doesn't mean the jury or anyone else has to give it the time of day, much less use it to give her LWOP instead of the DP.
It doesn't seem fair to jurors to give them instructions that are so readily misunderstood. Isn't the purpose of the instructions to give the jury the best possible guidelines to help them make an extraordinarily difficult decision? Why not at least translate them from legalese into English?
As in: the defendant's attorneys have presented evidence to you intended to support their list of reasons why you should show mercy.
You will take that list of reasons back to the jury room with you. For each reason listed you should first discuss whether or not the defendant's attorneys met their burden of proof that the reason should be considered reasonably true.
For example, if one of the reasons provided on the list is that you should spare the defendant because she was victimized as a child, you must first decide whether or not the defendant's attorneys have demonstrated that it is reasonably true the defendant was victimized as a child.
If you are in agreement that this or any other listed reason to show the defendant mercy could reasonably be true, then you must decide if each or any of the reasons on the list convinces you that the defendant should be shown mercy.
Hmmm. That exercise is more difficult than I imagined......