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Competent Capital Representation: The Necessity of Knowing and Heeding What Jurors Tell Us About Mitigation

33 Pages Posted: 19 Jul 2008 Last revised: 24 Sep 2008

John H. Blume III

Cornell Law School

Sheri Lynn Johnson

Cornell Law School

Scott E. Sundby

University of Miami School of Law

Abstract

This article appears in the Hofstra Law Review symposium issue on the Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty cases.

Capital defense counsel have a duty at every stage of the case to take advantage of all appropriate opportunities to argue why death is not a suitable punishment for their particular client. But that duty can hardly be discharged effectively if the arguments are made in ignorance of available information concerning how persuasive they are likely to be to their audience.

Heeding that simple proposition we present lessons from the work of the Capital Jury Project, an ongoing empirical research effort built upon extended interviews with people who have actually sat on capital juries. We find that the standards for mitigation investigations contained in the ABA's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases reprinted in 31 Hofstra L. Rev. 913 (2003) and in the Supplementary Guidelines that are the subject of this issue are on firm empirical ground, both in their specific aspects and in their overall approach of encouraging counsel to be creative in building a coherent mitigation theory that is advanced consistently throughout the proceedings.

We then describe particular defense themes and approaches that Project data show are likely to resonate favorably with jurors as well as the most potent prosecution arguments for death and how they might be most effectively rebutted. We conclude by describing the current research findings on the demographic and attitudinal characteristics of those jurors most likely to vote for life, and offering pointers on how to best ameliorate the scandalous but well-documented reality that many jurors simply do not understand the task they are being called upon to perform.

Suggested Citation

Blume, John H. and Johnson, Sheri Lynn and Sundby, Scott E., Competent Capital Representation: The Necessity of Knowing and Heeding What Jurors Tell Us About Mitigation. Hofstra Law Review, Vol. 36, No. 3, 2008. Available at SSRN: https://ssrn.com/abstract=1160385

John H. Blume III (Contact Author)

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

Sheri Lynn Johnson

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States
607-255-6478 (Phone)
607-255-7193 (Fax)

Scott E. Sundby

University of Miami School of Law ( email )

1311 Miller Dr.
Coral Gables, FL 33146
United States
305-284-5848 (Phone)

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