THE FOLLOWING IS THE STANDARD JURY INSTRUCTION GIVEN IN A DEATH PENALTY CASE IN CALIFORNIA
(Horowitz’ comments are in [brackets and in bold]
In determining which penalty is to be imposed [on each defendant], you shall consider all of the evidence which has been
received during any part of the trial of this case.
You shall consider, take into account and be guided by the following factors, if applicable:
(a) The circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of
any special circumstance[s] found to be
true. [This is generally used as an factor towards death. The very fact that the defendant committed the crime is already
PRESUMED by the jury during voir dire. They promise that the crime itself if committed is not enough to require death (or
life) in every case. They promise that both options are open. Therefore, defense counsel will often argue that if the crime
is just as "promised" the jury must still keep an open mind. Prosecutors will focus on the callousness of the offense and
the degree of cruelty etc. to make the crime itself sufficient for a death verdict]
(b) The presence or absence of criminal activity by the defendant, other than the crime[s] for which the defendant has
been tried in the present proceedings, which involved the use or attempted use of force or violence or the express or implied
threat to use force or violence.
[Prosecutors rely heavily on this factor but in the Peterson case for example there are probably no prior violent crimes.]
(c) The presence or absence of any prior felony conviction, other than the crimes for which the defendant has been tried
in the present proceedings.
[NOW YOU GET TO THE MITIGATING FACTORS i.e. those pointing towards a life verdict.]
(d) Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional
disturbance. [This can be mental illness but it can also be situational. SEVERE is the key.]
(e) Whether or not the victim was a participant in the defendant's homicidal conduct or consented to the homicidal act.
[It’s hard to imagine a circumstance where this would apply.]
(f) Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral
justification or extenuation for his conduct.
[Like (e), if this really exists most cases would not be charged as a death case.]
(g) Whether or not the defendant acted under extreme duress or under the substantial domination of another person.
[This is important in a co-defendant case where one was the leader and the other a follower. Consider the shootings with
Lee Boyd Malvo (the juvenile in the recent sniper shootings. Of course, his bragging or other conduct can take this factor
right off the table.]
(h) Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct
or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect or the effects of
intoxication.
[Again, most counties won’t charge a case for death if intoxication or drugs really created a one time, situational
killing. They might seek life without parole however. An exception would be when the person has a long criminal record, a
prior violent record or the crime was particularly heinous.]
(i) The age of the defendant at the time of the crime.
(j) Whether or not the defendant was an accomplice to the offense and his participation in the commission of the offense
was relatively minor.
(k) Any other circumstance which extenuates (MEANING REDUCES) the gravity of the crime even though it is not a legal
excuse for the crime [and any sympathetic or other aspect of the defendant's character or record as a basis for a sentence
less than death, whether or not related to the offense for which he is on trial. You must disregard any jury instruction given
to you in the guilt or innocence phase of this trial which conflicts with this principle.
[Sympathy for the family of the defendant is not a matter that you can consider in mitigation.
[Evidence, if any, of the impact of an execution on family [members] should be disregarded unless it illuminates some positive
quality of the defendant's background or character.]
Daniel Horowitz August 26, 2003
(510) 444-4888
Horowitz@WhiteCollar.US
