Cornell Law School has an online site where you can search for “scholarly articles” written by law professors on different subjects – I found several interesting ones re: mitigation factors in death penalty cases. Two had to do with what was found when a study was done with jurists that had served on capital cases about what did or did not influence them. Both articles agreed on 3 primary factors, one had the study’s tables showing results to various questions and these were by far the highest influencers. They also included suggestions for defense of these factors. Quoting some of it here ( my notes in red about how they might relate to this case or rebuttal if she presents them):
Some of the ‘strategies’:
#1 How bad, or Vileness of crime. "However, jurors do view a crime as less vile-and less deserving of death when a victim's own actions at the time of the crime put him or her at risk, or in some other way were morally blameworthy." Her claim that it was Travis’ gun and he came after her first. His psychological abuse led her to snap and she wasn’t in control of her actions. Chris & Sky Hughes will be asked about their email to Travis about his ‘abuse’ of her. "Finally, perceptions of vileness are clearly influenced by beliefs that the defendant acted in a premeditated way, and decreased by beliefs that the defendant was "crazy" or was mentally impaired " Premeditation was found but she may still argue it, because any question in the jury’s minds about her guilt or actions is another factor mentioned in this study – they can be there but were just not enough to overcome aggravators in guilt phase, but could still influence mitigation. Her defense is to show she was driven into this ‘fog’ murder, as a victim of his abuse and more specifically on that day by his physical aggression towards her.
#2 How dangerous. "Jurors are also more likely to impose a sentence of death when they believe that the defendant will not actually remain in prison his whole life; indeed, the shorter their estimation of the time the defendant will be incarcerated prior to release should they not sentence him to death, the more likely they are to sentence him to death. That is, jurors may not really prefer to execute the defendant, but they prefer his execution to his continued threat to the safety of the community"
“Now here is some good news, because in most jurisdictions, a capital defendant not sentenced to death will be imprisoned for life, and even in the rare jurisdiction where he will eventually be released, his release will be significantly later than jurors believe it will be. So the truth will, if not set the capital defendant free, at least increase the likelihood that he will live. Repetition of the truth of incarceration for life-as well as its incorporation into jury instructions-matters. Witnesses should be encouraged to explicitly refer to the alternative of life imprisonment without the possibility of parole, and lawyers should train themselves to use the entire phrase whenever speaking of the decision before the jury.”JM already argued that this statement by the defense in closing last time was not accurate and the jury should know the possibility is there, if parole is reinstated. Defense may be less obvious in their closing this time, but will try to insinuate it instead?
“An expert on adaptability to confinement (who often can also provide the testimony on the security of the state's prisons) can disabuse the jury of the belief that behavior on the outside predicts behavior on the inside, and substitute a more accurate (and generally more favorable) assessment of likely behavior while incarcerated based upon prior behavior while incarcerated, or in some cases, while in a mental institution, or even in the army” This is the reason they may call that prison expert – to testify how she will be controlled in prison, and to testify that her record in jail has been good (expect to see her infractions explained away as non-violent and nothing to worry about?)Also may be another way to insinuate that parole will never happen and she'll be in for life.
#3 Remorse They do mention that bringing up remorse in the penalty trial is not a good idea. Jurists generally don’t believe it’s real unless it was presented earlier in the trial and hopefully by someone else testifying to her statements of remorse prior to arrest. They also mention that if defendant didn’t readily confess, or tried to lie, remorse is hard for a jury to accept. Also, her statement in that interview that no one has any reason to fear her, unless they abuse her (or whatever she said), also shows she does not show remorse – she thinks he deserved it!
