Stephen L Richards Law Firm of Richards and Lyon 7738176927 Sricha5461aolcom Four Steps Strategy Pretrial Litigation Jury Selection Evidence Argument and Jury Instructions ID: 633565
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Slide1
Eligibility in a death penalty case: the forgotten phase
Stephen L. Richards
Law Firm of Richards and Lyon
773-817-6927
Sricha5461@aol.com Slide2
Four Steps
Strategy
Pretrial Litigation
Jury Selection
Evidence, Argument, and Jury Instructions Slide3
Why is the eligibility phase the best thing since sliced bread?
One Juror – Defense Wins
Reasonable Doubt
Residual Doubt
Rules of Evidence
Slide4
Eligibility Jury Wins Since 2000
Larry Mack
– 4 jurors didn’t believe felony murder killing was intentional
James Huff
– 12 jurors didn’t believe child was intentionally killed during course of sexual assault
Maurice
LaGrone
–
12 jurors decided that defendant did not have the intent to kill more than one person
William Buck
– two jurors didn’t believe that officer was acting in line of duty Slide5
Should you ever give up on eligibility?
Multiple murder cases?
But . . . Check to see if prior murder qualifies
Arson cases --- is there an intent to kill more than one person by a single act
If felony murder or accountability did your defendant intend to kill or know
More than one aggravator?
Numbers count
Some aggravators are worse than others
Chance to train jury in one juror verdict principleSlide6
Selected Eligibility Issues
Felony murder –
Actual killer or
wounder
Mental state
Was the felony established beyond RD
Police officer -- in line of duty or known to be police officer
Cold and calculated – “cold” and “premeditated”Slide7
Pretrial Litigation on Eligibility Issues
Eligibility Factors not in Indictment
Notice of Intent (Not specific enough)
Unprovable
– request for evidentiary hearingSlide8
Eligibility and Jury Selection
Ask for the
Zehr
questions on eligibility, if there is going to be a good eligibility issue
Ask to modify the Morgan questions, based on the aggravating factors Slide9
Jury Instructions
The “Mack Error” Rule
Check to See Which Evidentiary Instructions you Need to Repeat from the First Phase
Ask for Separate Verdict Forms for Each Factor
Look for non-IPI definitions as to each factor Slide10
Example:
For murder to be “cold,” it must be not motivated by mercy or the emotion of the moment, and the defendant must kill without feeling or sympathy. For a murder to be “calculated and premeditated pursuant to a preconceived plan, scheme, or design,” it must have been deliberated or reflected upon for an extended period of time
, and must have been thought out well in advance of the crime.