CRAFTING A PENALTY CLOSING ARGUMENT

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CRAFTING A PENALTY CLOSING ARGUMENT

October 24, 2014

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Basics

1. The death penalty is never required or necessary

3. Each decision must be your own not influenced by harassment or interference

from others

2. Explaining, justifying, convincing others of your opinions is not required

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Basics

4. It takes 12 unanimous jurors to make an execution a reality, but any 1 juror can stop

an execution from happening.

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Death Penalty: Factors to ConsiderCal. Crim. 763

(a) Circumstances of the crimes in this case and any special circumstances that

were found true.

(b) Whether or not the defendant has engaged in past violent criminal activity

(c) Other prior felony convictions

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(k) “Any other circumstance, …or anything you consider to be a mitigating

factor”

Death Penalty: Factors to ConsiderCal. Crim. 763

(a) Circumstances of the crimes in this case and any special circumstances that

were found true.

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Someone Legally Responsible for a Killing Done By Others

Someone Who Personally Kills

VS.

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Mitigation

• Armed vs. Unarmed• 1st Degree vs. Felony

Murder• Lingering Doubt• Absence of Criminal

History (Factor C)• Who the Victims Are• Compassion/Humanity• Redeeming Qualities

• Not Worst of Worst• Actual Killer vs.

Conspiracy Liability• Childhood Matters• LWOP means LWOP• Adequate Punishment• Behavior in Court• Change• Professional Opinions

The Role of Grief

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Childhood Matters

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“TOMMY, YOU KNOW, ALWAYS BROUGHT UP HIS MOM, AND HE HAD A PICTURE OF HER, I REMEMBER, HE KEPT OF HER ON HIS BED OF HE AND HIM MOM AND HIS DAD, AND THAT WAS SOMETHING THAT WENT WITH HIM, I THINK, EVERYWHERE. THAT WAS SOMETHING REALLY IMPORTANT TO HIM. HE MISSED HIS MOM. . . . I REMEMBER HIM PUNCHING HIS PILLOW, JUST, “WHAT HAPPENED? WHERE IS SHE?” . . . I THINK HE BELIEVED, FROM, YOU KNOW, WHAT WE TALKED ABOUT, THAT SHE LEFT HIM.”

- Jackie Croft

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“I love him very much. He’s my best friend. I would have him come into my house today with my child and my wife and live there with me if I could. He’s a very good person. Please.”

- Victor Martinez

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“I always felt if there was one person in this whole world that I could help. I wanted it to be him. . . I was also so hard because he’s like my child, and . . . I feel that he has so much to offer.”

- Johanna Kinkade

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“I love him very much. And if you know him the way that we know – The way that I know him since he was first born, I think you’d understand that and you’d understand why.”

- Amy Weichert

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“There never been a day that I haven't prayed for him. . . And I just can’t believe that my God, is not a God that would bring him back into my life after 20 years just to see him taken away again.”

- Lisa Fitzgerald

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Cal. Crim. 763 (k)

“Including sympathy or compassion”

“Under the law, you must consider, weigh, and be guided by specific factors…”

“Or anything you consider to be a mitigating factor”

“Well I believe that all of us, even everyone in this room makes a mistake and God has given us all forgiveness as long as we are willing to ask for forgiveness. I believe in forgiveness.”

- Lynette Mercado Bates

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Life Without ParoleMeans

Life Without Parole

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Residual Or Lingering DoubtAlthough you have found the defendant

guilty of murder in the first degree beyond a reasonable doubt, you may demand a greater degree of certainty for the imposition of the

death penalty.

The finding of guilt is not infallible, and any lingering or residual doubt which you may

entertain may be considered by you in determining the appropriate penalty.

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