The Jillster (Jill Lepore) offers a scholarly critique of show trials in current court proceedings that feature armies of victims who distort the rendering of just, rational verdicts. Lepore refers again and again to the "stoning of the accused." Courtrooms have become reality-TV shows. In her closing paragraph, Lepore cites the example of the survivors of the Marjory Stoneman Douglas High School shootings as a hopeful sign because the survivors have made no mention of the shooter and, instead, focus their condemnation on the NRA and the officeholders who refuse to do anything about easy access to military-grade weapons by mentally-ill consumers. If this is a (fair & balanced) crucial distinction between justice and mob-revenge, so be it.
[x The New Yorker]
Sirens In The Night — The Rise Of The Victims’-Rights Movement
By The Jillster (Jill Lepore)
TagCrowd Cloud of the following piece of writing
“This is not theatre,” Judge Richard Matsch announced on the first day of the trial of twenty-nine-year-old Timothy McVeigh in the daffodil spring of 1997. “This is a trial.”
McVeigh, charged with bombing the Alfred P. Murrah Federal Building, in Oklahoma City, two years earlier, stood accused of taking the lives of a hundred and sixty-eight people and injuring some seven hundred more in the worst act of domestic terrorism in American history. The blast demolished nearly half of the nine-story building, shattering its glass front and shearing off its north face. Rescue workers who raced to the scene could hear people moaning and crying, pinned beneath concrete slabs, impaled with steel girders, suffocating from dust. Jerry Flowers, an Oklahoma policeman, dug through rubble at what became known as the pit, near where, earlier that morning, there had been a day-care center. Someone handed him a small body, wrapped in a blanket. Flowers unwrapped the blanket. “He was a little boy, about five, six years old, and he had a Teddy bear on his shirt,” Flowers later said. “His face was gone.”
Many bodies were recovered in pieces. Kathleen Treanor’s elderly in-laws were taking care of her four-year-old daughter, Ashley, that day, and they’d stopped at the Murrah building for an appointment at the Social Security office. They were all killed. Months later, after a funeral with a closed casket, Treanor got a phone call from the medical examiner’s office.
“We have recovered a portion of Ashley’s hand,” the voice at the other end of the line said. “And we wanted to know if you wanted that buried in the mass grave, or if you would like to have it to do with what you need to do.”
“Of course I want it,” Treanor said. “It’s part of her and I need to have it where I know it is.”
The Oklahoma City bombing produced an unprecedented number of victims: thousands. Under terms established by the victims’-rights movement, that number included not only the dead and wounded but also grieving family members and devastated rescue workers. They had lost; they had suffered; they were haunted.
The victims’-rights movement, which began decades ago, has lately reached new heights. In November, voters in five states will decide on ballot-initiated victims’-rights amendments; activists hope, one day soon, to amend the U.S. Constitution. McVeigh’s trial marked the movement’s turning point. Many of the victims wanted to speak at the trial. The government fully expected a conviction, and decided to seek the death penalty, but hoped to avoid a trial like O. J. Simpson’s, with its bloody footprints, its leather gloves, its preening attorneys—a media circus, a legal travesty. Matsch, sixty-six, wore cowboy boots beneath his robes. He kept a portrait of George Patton in his office. He had a Burt Reynolds mustache. He was known to be stern, efficient, and decisive. “Lance Ito he’s not,” the Washington Post reported.
The Simpson trial had blundered along for eight months; McVeigh’s, once it started, was over in six weeks. Matsch, spurning theatre, attempted to limit the victims’ role in the proceedings. He made it difficult for them to attend or watch the trial; he declared some of their evidence inadmissible and cautioned the jury about what are known as victim-impact statements, deeming them too emotional. He prohibited anyone involved in the trial from speaking to the press. At one point, when a prosecutor told the jury there would be included, in his evidence, several of the victims’ wedding photographs, Matsch cut him off: “No, there won’t.”
Few of the limits that Matsch imposed two decades ago would be imposed today, or could be, given changes in state and federal law. This winter, in a camera-cluttered courtroom in Michigan, during the sentencing of the former Olympics gymnastics doctor Larry Nassar, convicted of sexual assault, Judge Rosemarie Aquilina allowed a hundred and fifty-six women to make victim-impact statements. In her court, Nassar, fifty-four, had been convicted of sexually assaulting only seven women. He had also already been sentenced to sixty years in prison on child-pornography charges. Nevertheless, nearly a hundred and fifty women spoke of the harm Nassar had done to them in committing crimes for which he had never been charged, delivering heartrending statements, broadcast live, over seven days. “I can’t imagine a punishment great enough for you,” the former gymnast Kamerin Moore told Nassar. Anna Ludes, a former Michigan State rower, said, “Because of Nassar, I have to spend the rest of my life trying to heal, and I want nothing more for him than to spend the rest of his life behind bars.” The women cried, and the Judge cried.
“I know that the world is watching,” Aquilina said, the day she sentenced Nassar to up to a hundred and seventy-five years in prison. She said she’d been gratified by the reaction to the televised and live-streamed proceedings on Twitter and Facebook. She congratulated the press. “I respect all of the media outlets, you have just done a fabulous job here.” She congratulated herself. “I give everybody a voice,” she said. “I give defendants a voice, their families when they’re here, I give victims a voice.”
Matsch spurned theatre; Aquilina turned her courtroom into a stage. American justice has been remade. Some of what happened in the Nassar trial is as new as #MeToo. Much of it is as old as stoning.
On February 20, 1996, Matsch had ruled that McVeigh’s trial would be moved from Oklahoma City to Denver, to insure an impartial jury. That made attending impossible for many victims, but Matsch’s ruling also presented the victims’-rights movement with an unparalleled opportunity. “When you have the Oklahoma bombing victims as your illustration, you have access to Congress,” the University of Utah law professor Paul Cassell told me. Cassell led a legal team advocating for the victims. At their urging, Congress, which was then considering an Anti-Terrorism and Effective Death Penalty Act, added a provision requiring that if a trial is moved more than three hundred and fifty miles from the scene of a crime the federal courts (from which cameras are banned) have to make closed-circuit broadcast available to the victims. Matsch entertained arguments concerning the constitutionality of the provision. In the age of “Oprah,” which placed trauma at the center of American popular culture, both sides rested their arguments less on legal claims than on psychological ones. The prosecution insisted that the victims needed to attend the trial for purposes of therapy: “Part of their recovery depends on their seeing—first hand, if possible—our system of justice at work.” The defense suggested that the presence of the victims, or even of cameras, would unsettle jurors, subjecting them to “enormous psychological pressure” by reminding them that “a large, faceless group of grievously injured persons are depending on the jury to return the only verdict (guilty) and sentence (death) this group will find acceptable.”
Matsch grudgingly allowed the installation of a single camera, mounted at the back of the Denver courtroom, which captured a fixed-focus shot of the bench, the witness box, and the tables at which the defense and the prosecution sat. Twelve hundred people requested credentials to watch; eight hundred and thirty-two were allowed, taking turns occupying a three-hundred-and-twenty-seat auditorium in Oklahoma City.
Those seats were provided by the victims’-rights movement, the child of an unlikely marriage of conservatism and feminism. The movement usually dates its origins to 1975, when, with the aid of the Heritage Foundation, a lawyer named Frank G. Carrington published a book called The Victims (1975). But the movement really began in 1966, when Carrington founded Americans for Effective Law Enforcement, to protest what’s known as the due-process revolution. Between 1961 and 1966, the Warren Court issued a series of decisions that protected the rights of defendants, producing the Exclusionary Rule, which deems evidence obtained without a search warrant inadmissible; the requirement that police notify suspects of their rights; and the provision of court-appointed attorneys for defendants who can’t afford them. Carrington and other law-and-order conservatives, led by the California governor Ronald Reagan, argued that liberals on the Supreme Court, on judges’ benches, and in the legal academy were soft on crime. “For Law and Order” became a slogan of Richard Nixon’s 1968 Presidential campaign. “As we look at America, we see cities enveloped in smoke and flame,” Nixon said, accepting the Republican nomination. “We hear sirens in the night.”
Against the noisiness of a (criminal) minority, Nixon posited the silent, victimized majority, a note his Administration sounded over and over. The minority had more rights than the majority; a balance had been lost. This led to talk of victims, whose voices needed to be heard. In 1970, Spiro Agnew complained that “the rights of the accused have become more important than the rights of victims in our courtrooms.” In 1971, Lewis Powell, whom Nixon had nominated to the Supreme Court, wrote that “the victims of crime have become the forgotten men of our society.” By 1972, when the Warren Court ruled the death penalty to be essentially unconstitutional, Carrington had coined the term “victims’ rights.” His book The Victims amounted to a manifesto against the Warren Court. William F. Buckley’s brother James, a US senator, supplied a foreword, which called for the restoration of the death penalty and complained about “a severe imbalance in favor of the rights of those accused of crime over the rights of those victimized by crime and of the public at large.”
This historical, restore-the-balance argument—the central tenet of the victims’-rights movement—is both superficially right and profoundly wrong. For centuries, criminal trials were, like civil ones, contests between individual parties: Victim v. Defendant. By the early modern era, the state had become the prosecuting party in criminal trials, which then took the form of Crown v. Defendant (and, in the United States, of State v. Defendant). As John Locke pointed out, this change was foundational to civil society, in which, “all private judgment of every particular member being excluded, the community comes to be umpire, by settled standing rules, indifferent, and the same to all parties.” Wherever people yield to public authority the judgment and punishment of crime, Locke wrote, “there and there only is a political, or civil society.”
During the centuries when victims were gradually excluded from criminal proceedings, defendants didn’t have much of a role, either. Generally, defendants were not allowed counsel before the eighteenth century and could not offer sworn testimony before the end of the nineteenth century; most trials, in any case, lasted only about twenty minutes. Against the fearsome power of the state, defendants are nearly powerless, which is why most rules of evidence are designed to protect them, a principle central to the founding of the United States and embodied in the Fourth, Fifth, Sixth, and Eighth Amendments and, later, in the Fourteenth. The rights of defendants are protections against the state, not harms done to victims.
At a pretrial hearing in October, 1996, Matsch attempted to explain this principle. Many victims who wanted to watch the trial also hoped to speak at the sentencing; Matsch was inclined to rule that they could not do both, and would have to make a choice, because watching the trial would have an effect on them, tainting their testimony. “I don’t see any way in which you can cabin that kind of emotion,” Matsch said. This struck a lot of victims as both heartless and senseless. “I have a hole in my head that’s covered with titanium,” a man who lost an eye in the blast said. “I think about it every minute of the day.” But when the prosecution complained that Matsch was favoring the rights of the defendant over the rights of the victims, Matsch objected to this formulation. “We’re not talking about defendants’ rights as such,” he answered. “We’re talking about the integrity of the process by which defendants are judged and the evidence is judged. And that’s the responsibility of a judge, and that’s the responsibility I’m attempting to meet by what seems as a very hard-hearted rule.” Matsch stuck with his decision.
“Nobody has said a good word about that ruling,” Cassell told me. “And it appeared to be in contravention of federal law.” Cassell helped the victims file an appeal with the Tenth Circuit, arguing that “the law should not be construed to thrust this terrible choice on victims, who have already suffered far too much.” While they waited for the appeals court’s final decision, the victims went, once again, to Washington.
Removing victims from criminal prosecutions had been the work of centuries; putting them back in has been the work of decades. In 1981, Reagan’s Justice Department appointed Carrington to a Task Force on Violent Crime and, in 1982, to the President’s Task Force on the Victims of Crime. Disavowing legal reasoning—“You cannot appreciate the victim problem if you approach it solely with your intellect” —the Task Force on the Victims of Crime recommended introducing victim-impact statements into sentencing and parole hearings. That year, a subcommittee of the Senate Judiciary Committee prepared a report called “The Right to Keep and Bear Arms,” establishing another means by which potential victims of crime could assert their rights: the subcommittee claimed to have discovered “clear—and long-lost—proof that the Second Amendment to our Constitution was intended as an individual right of the American citizen to keep and carry arms in a peaceful manner, for protection of himself, his family, and his freedoms.”
While gun-rights arguments met with objections, victims’-rights arguments generally did not. Many of the movement’s reforms—like requiring that courts notify victims of trial dates and allow them to attend—seemed sensible. Also, Carrington’s interests aligned with those of many feminists. For all the stability of the State v. Defendant regime, the courts had for centuries slighted crimes against women, whose powerlessness before the state—in the form of an all-male bench and bar—really did rival that of criminal defendants. At the time, most prosecutors and judges appear to have believed that marital rape was not rape, domestic violence was a family affair, and sexual harassment was part of life. Rape convictions were extremely difficult to obtain. Both law-and-order conservatives and women’s-rights activists sought more aggressive prosecutions of and stricter sentences for rape and sexual assault, along with broad protections for victims, by deploying the language of victims’ rights. In New York, for instance, the campaign for victims’ rights was led by the longtime civil-rights activist Elizabeth Holtzman. As a member of Congress, Holtzman introduced a bill in 1976 to protect rape victims from cross-examination about their sexual history, and a Victims of Crime Act in 1979. Later, as a district attorney, she established a crime-victims counselling unit and introduced victim-impact statements at sentencing hearings. “For too long, the criminal-justice system ignored or mistreated victims,” Holtzman said in a speech before the New York City Task Force on Sexual Assault in 1987.
Because victims’ rights is a marriage of feminism and conservatism, the logic behind its signal victory, the victim-impact statement, rests on both the therapeutic, speak-your-truth commitment of a trauma-centered feminism and the punitive, lock-them-up imperative of law-and-order conservatism. Arguably, this has been a bad marriage.
The rise of victim-impact evidence can’t be understood apart from Reagan’s efforts to establish federal sentencing guidelines, and, more broadly, to refashion the federal judiciary. In the nineteen-eighties, when liberals dominated both the federal bench and the Supreme Court, Reagan’s attorney general, Edwin Meese, was determined to rid the courts of liberal justices and liberal jurisprudence. In the long term, that meant appointing new judges, but, in the short term, it meant constraining the power of old judges. In the first two years of Reagan’s first term, Congress considered more than two dozen bills limiting the authority of federal judges. In 1982, the Task Force on the Victims of Crime had recommended legislation “to abolish parole and limit judicial discretion in sentencing.” Two years later, Congress established a federal Sentencing Commission, which was supposed to figure out appropriate minimum and maximum sentences for certain crimes, but, even before receiving the commission’s recommendations, Congress went on a criminal-penalty binge, passing stricter and stricter sentencing laws: mandatory minimums. At least one federal judge resigned rather than comply. Bill Clinton, though, did not contest the sentencing guidelines. Instead, he joined the war on crime by signing an omnibus Crime Bill, which both expanded the number of crimes punishable by death and provided federal funding to fight violence against women.
The 1994 Crime Bill also included a ban on assault weapons. Timothy McVeigh, enthralled by the new interpretation of the Second Amendment, used the language of both the gun-rights and the victims’-rights movement to justify his crime. He blew up the Murrah building on the second anniversary of the ATF’s assault on the Branch Davidian compound in Waco, Texas, in which seventy-six people were killed. Convinced that the American government was trying to disarm the American people, he also believed rumors of “Waco-style raids scheduled for the spring of 1995 to confiscate firearms.” He said that he bombed the Murrah building because the government, in declining to prosecute federal and state agents involved in Waco, had “failed the victims who died during that siege.”
After the reeling, gut-punch horror of Oklahoma City, no one in Clinton’s Administration had a word to say against the victims’-rights movement. Feeling other people’s pain, after all, was Clinton’s trademark. “You are my heroes and heroines,” Attorney General Janet Reno said at a victims’-rights conference in August, 1996. “You are but little lower than angels.” That fall, the more Matsch limited the role played by victims in the McVeigh trial, the more traction the movement gained with the public. Eight states joined nineteen others on Election Day in 1996 in adding victims’-rights provisions to their state constitutions. With Reno’s support, Bill Clinton, standing in the Rose Garden, endorsed a victims’-rights amendment to the Constitution, jointly proposed by the California senator Dianne Feinstein and the Arizona senator Jon Kyl. “When a judge balances the rights of the accused and the rights of the victim,” Clinton said, “we want the rights of the victim to get equal weight.” He might have been Spiro Agnew.
On March 11, 1997, the Tenth Circuit upheld Matsch’s ruling that victims who wanted to watch the trial could not also speak at the sentencing. Eight days later, Congress essentially overruled the circuit court by passing the Victim Rights Clarification Act, decreeing that no district court could order victims to make such a choice. Clinton signed the bill on March 20th. Matsch largely ignored it, not least because it was by no means clear that Congress had the power to tell him how to run a trial.
Jury selection began on March 31, 1997. On June 2nd, after deliberating for nearly twenty-four hours, the jury found McVeigh guilty. Many of the victims shed tears of relief. Robbin Huff was almost eight months pregnant with her first child when she was murdered by McVeigh. “It would have taken members of many victims’ families 10 seconds to reach the verdict,” Huff’s uncle wrote, “which is why we would have made terrible jurors.”
On June 4th, the first day of the trial’s sentencing phase, the victims began to speak. Other victims had spoken during the guilt phase of the trial, as eyewitnesses. These victims, though, spoke about harm, in statements the jury would consider to be aggravating evidence, as against the mitigating evidence presented by the defense. (McVeigh’s family pleaded for his life to be spared, and his attorneys introduced family snapshots.) The lead attorney for the prosecution, Patrick Ryan, gathered the victims at the back of the courtroom, where they all held hands. Then he turned to the jury. “We present this information on behalf of the United States not to evoke your sympathy,” he said. “The victims of this crime have had all of the sympathy they can stand in the last two years.”
The state brought victims to address the jury at McVeigh’s sentencing and to support its request for the death penalty, which, though all but abolished in 1972, had been reinstated by the Supreme Court four years later, in Gregg v. Georgia. Still, recognizing that “death is different,” Gregg required that the sentencing phase of a capital trial be separated from the determination of guilt or innocence. Once a jury reaches a verdict, the rules of evidence change, in the sense that most of them no longer apply. There is no cross-examination, for instance, and there are no prohibitions on evidence about character or past misconduct. Also, the standard of evidence drops from “beyond a reasonable doubt” to a “preponderance of evidence.” Post-Gregg, the courts require what is sometimes called “super due process” in death-penalty cases, given the gravity of the punishment.
For a long time, as the Court tried to hammer all this out, victim-impact evidence was inadmissible in death-penalty cases, an exclusion that the Court had twice upheld. In 1987, in Booth v. Maryland, the Court ruled victim-impact evidence in a capital trial to be unconstitutional, a violation of the Eighth Amendment. After John Booth was convicted of murdering an elderly couple, the couple’s son, daughter, son-in-law, and granddaughter talked about their grief. Booth’s attorney tried to have the evidence suppressed, calling it “both irrelevant and unduly inflammatory.” In a 5–4 ruling, the Court agreed, and suggested that its introduction could turn the sentencing phase of a capital trial into “a ‘mini-trial’ on the victim’s character.” Antonin Scalia, a Reagan appointee who had only just joined the Court (Cassell had clerked for him from 1984 to 1985, when Scalia was a judge for the DC Circuit), wrote a blistering dissent:
Many citizens have found one-sided and hence unjust the criminal trial in which a parade of witnesses comes forth to testify to the pressures beyond normal human experience that drove the defendant to commit his crime, with no one to lay before the sentencing authority the full reality of human suffering the defendant has produced.
Two years later, the Court upheld this decision, 5–4. Then, in 1991, in Payne v. Tennessee, the Court reversed itself.
Pervis Tyrone Payne murdered Charisse Christopher and her two-year-old daughter, Lacie. During sentencing, Charisse’s mother delivered a heartbreaking victim-impact statement, and the jury sentenced Payne to death. In a 6–3 opinion, written by Chief Justice Rehnquist, the Court deemed victim-impact evidence “simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question.” A victim should not be a “faceless stranger,” Rehnquist insisted. To right the balance in the sentencing phase of a capital criminal trial, courts should admit a “quick glimpse of the life the defendant chose to extinguish” and let prosecutors convey “the loss to the victim’s family and to society which has resulted from the defendant’s homicide.”
It was Thurgood Marshall’s turn to dissent. The Court, he noted, did not ordinarily reverse course so quickly. What changed was “neither the law nor the facts” but “only the personnel of this Court.” In his view, victim-impact evidence draws “the jury’s attention away from the character of the defendant and the circumstances of the crime to such illicit considerations as the eloquence with which family members express their grief and the status of the victim in the community.” Legal scholars tended to agree. A leading critic, the DePaul law professor Susan Bandes, wrote that victim-impact statements “appeal to hatred, the desire for undifferentiated vengeance, and even bigotry,” and “may block the sentencer’s ability to perceive the essential humanity of the defendant.” Moreover, she argued, “in their insistence on evaluating the worth of the victims,” victim-impact statements “offend the dignity of the victim as well.”
In both capital and non-capital cases, victim-impact evidence has been shown to affect sentencing: that’s why prosecutors introduce it. Research also suggests that, though victims of violent crime are disproportionately poor and nonwhite, white victims are twice as likely as black victims to make victim-impact statements. Where jurors identify victims as “respectable,” they tend to identify with them (finding their lives to be similar to their own), while they rarely identify with defendants (whose lives tend to be very different from theirs). Jurors also report being less compelled by victim-impact statements made by black victims than by those made by white victims. And victim-impact evidence appears to amplify the commonly held prejudice that people with darker skin are more “deathworthy.” Finally, Bandes explains, the statements leave judges wondering whether, for example, they are supposed to mete out a more severe punishment on behalf of the rape victim who gives a more compelling statement.
Plainly, Matsch was worried. “We have to guard this hearing to ensure that the ultimate result and the jury’s decision is truly a moral response to appropriate information rather than an emotional response,” he warned. He wanted a verdict and a sentence that would stick. He attempted to follow the test established in Payne: victim-impact evidence can be admitted in a capital case unless it is so “unduly prejudicial that it renders the trial fundamentally unfair.” But, as Bandes and Jessica Salerno, a psychologist at Arizona State, have argued, it’s hard to say what lies between probative value and prejudicial force: “If the probative purpose of the evidence is to evoke the life lost with vividness and particularity, what is the measure of undue prejudice?” Isn’t the whole point of this kind of evidence to stir the emotions?
Nor have clear guidelines been established about the form, quantity, or use of victim-impact evidence. Some of the things admitted as victim-impact evidence, including testimony that the victim was an excellent piano player, was “good honest hardworking God fearing people,” was a “smart person with higher IQ than others in her family” or had “a 3.8 grade point average,” would appear to advance the fundamentally anti-democratic notion that the lives of the eloquent, the intelligent, the beautiful, the cherished are more worthy of the full protection of the law than others.
How much evidence is enough, or too much? Challenges in some states have sought to limit admissible victim-impact witnesses to numbers that range from three to eleven, but, effectively, the number is limitless. What kind of evidence is allowed? Courts have admitted poems, “handcrafted items made by the victim,” “letters children wrote to their murdered mother,” and “photographs of the stillborn child victim dressed in clothes that the victim-mother had intended him to wear home from the hospital.” Judges often report that they themselves find it difficult to recover their emotional equilibrium after hearing victim-impact statements. Sorrow knows no bottom.
Matsch struggled to draw a line. He questioned people who had attended the trial, one by one, before allowing them to give victim-impact evidence. “A penalty-phase hearing cannot be turned into some kind of a lynching,” he announced, explaining that he would exclude testimony that would inflame “the passions of the jury with respect to vengeance or the passions of the jury with respect to empathy for grief.” He agreed to let a ten-year-old boy testify about the loss of his mother, but only after being assured that the boy would not cry. He ruled as inadmissible poems, wedding photographs, and memorial videos, and “a photograph of a mother releasing a dove, in lieu of a funeral, because her child’s body was not yet found.” He did allow a video of a day in the life of Brandon Denny, who was three when the bomb went off. A ceiling tile had pierced the child’s skull and, at the time of the trial, he had undergone seven brain surgeries.
Memorial videos, initially a product of the funeral industry, have proved particularly controversial. In Hicks v. State (1997), the prosecution introduced a fourteen-minute montage of a hundred and sixty photographs spanning the victims’ life from infancy. The Arkansas Supreme Court upheld its admission. In Salazar v. State (2002), the prosecution, in a Texas case, introduced a seventeen-minute video of a hundred and forty photographs (almost half of which depicted the victim in infancy or early childhood, including with a puppy), set to music, including Céline Dion’s “My Heart Will Go On.” Both the trial and the appeals courts deemed it admissible; a higher-level state appeals court did not. In Kelly v. California (2008), the prosecution introduced a twenty-two-minute video about the life of Sara Nokomis Weir, who, at age nineteen, was murdered by a personal trainer who worked at the gym she frequented. The montage of stills and video footage is mostly narrated by Weir’s mother; the soundtrack includes recordings of Enya. The trial court admitted the video, and the California Supreme Court upheld the decision, noting that the video illustrated the victim’s pleasing “demeanor”: “Sara appears at all times to be reserved, modest, and shy—sometimes shunning the camera.” Although the US Supreme Court refused to review this and another case, Justices John Paul Stevens and Stephen Breyer both disagreed with the decision. “The videos added nothing relevant to the jury’s deliberations and invited a verdict based on sentiment, rather than reasoned judgment,” Stevens wrote.
The use of such videos has led not only to the “mini-trial” on the victim’s character that the Court had warned about but also to a mini film festival. Offenders make videos, too. Sentencing-mitigation videos are the product of a for-profit industry. For about twenty thousand dollars, a filmmaker will pull together family photographs, home videos, narration, and music, in an attempt to paint the offender in a sympathetic light. “Our job is to make judges suffer,” one filmmaker says. In one recent sentencing-mitigation video, a friend of a convicted kidnapper says, “Joseph as a person, exempting this one situation, is an outstanding person, and outstanding friend, son, and outstanding pillar for his family. When you think about that word, ‘kidnapping,’ and you think about what it entailed, it doesn’t fit Joseph at all.” Videos from opposing sides can look uncannily alike. In State v. Leon (2006), the prosecution introduced a four-and-a-half-minute video of Angie Leon, who was murdered by her husband, Abel Leon. Most of the images and footage showed Angie and her three young children, often with their father. The video was meant to chronicle the children’s loss of their mother, and the Idaho Court of Appeals allowed it on these grounds. But, if their father was sentenced to death, they would lose him, too. As the University of Pennsylvania law professor Regina Austin has pointed out, either side could have used the film to equal effect. There are concerns, too, about new forms of digital evidence—PowerPoint slides, a Facebook time line, a digitally enhanced reconstruction of the crime, an augmented-reality program in which jurors endure the suffering of the victim of a violent crime, and more. The lack of rules leads to a technologically enhanced battle for the court’s sympathy. Cassell finds this objection specious. He asks, “If the defendant gets to use augmented reality, why can’t I? The point from the victims’ perspective is an equality point. If this is too emotional and too overpowering and too glossy and slick to go into our court system, then make that point, but don’t make it only about victim evidence.” Still, judges struggle with the problem of how to prepare jurors for what they’re about to see and hear. In 2003, after Gary Sampson was convicted of three premeditated murders in Massachusetts, the judge warned jurors, as the sentencing phase began, not to “permit the victims’ families’ testimony to overwhelm your ability to follow the law,” even as he instructed a clerk to hand out Kleenex.
In 1997, at McVeigh’s sentencing, Matsch addressed the jurors. “We’re not here to seek revenge on Timothy McVeigh,” he told them. “We’re here to consider these lives, what’s happened to these people.” Thirty-eight victims made their statements. They had lost; they had suffered; they were haunted.
“I feel like my heart looks like that building,” Diane Leonard said, about the death of her husband, Donald R. Leonard, a Secret Service agent. Kathleen Treanor told the story about Ashley, and the phone call, and the tiny hand; Jerry Flowers remembered unwrapping a blanket to find a child without a face. David Klaus talked about the loss of his daughter, Kimberly Burgess, twenty-nine, who worked in the credit union on the third floor of the Murrah building. “There is just this huge hole in my heart that is never going to get filled up,” he said. “I think about her first thing in the morning, and the last thing I think about at night is Kim and the fact I’m never going to see her again.” Mathilda Westberry, whose husband, FBI Special Agent Robert Glenn Westberry, fifty-seven, had been killed, talked about her four-year-old grandson, David, who could not understand what happened to Papa. Laura Sue Kennedy had lost her only son; he was eighteen months old. “Blake was my life,” she said. Alan Prokop, an Oklahoma City police officer, described holding the hand of a woman who died pinned beneath a slab of concrete. It was Prokop who had found little Brandon Denny. “He had a brick sticking out of his forehead,” Prokop said, and “was holding a little green block.”
The witnesses cried, the jury cried, the Judge cried. “We have to be careful and not let ourselves be overly stimulated by some of the testimony that we’ve heard here,” Matsch told the jury. Before calling the first witness, Ryan, the prosecutor, told them, “It would be easy for you as a jury to think of this as one mass murder. Don’t. There are a hundred and sixty-eight people, all unique, all individuals, all had families, all had friends, and they’re different. They went to church, they coached Little League, they designed highways, they liked to watch their children dance, they tried to prevent disease, they played on their beds with their kids.”
On June 13, 1997, the jury sentenced Timothy McVeigh to death. Outside the Murrah building, where victims and family members had gathered by a chain-link fence next to the rubble, they sang “God Bless America.”
In a national conversation about criminal-justice reform, the Reagan-to-Clinton-era guidelines for federal sentencing have been questioned, but the gains of the victims’-rights movement are generally taken for granted. Thirty-two states have passed victims’-rights amendments; five more ballot initiatives may pass in November. Once enough states have acted, activists will again press for a federal amendment. The last time the measure reached Congress, one of the prosecutors in the Oklahoma City bombing case argued against it (victims had tried to prevent one of McVeigh’s associates from signing a plea agreement in exchange for his testimony against McVeigh, which proved crucial in the trial). Cassell believes that there is much more work to be done. The movement’s latest campaigns would expand the range of victim-impact evidence allowed in both capital and non-capital cases, and more strictly enforce victims’ rights that are already on the books. In the age of #MeToo, victims’ rights are making remarkable political headway, for many of the same reasons they did after the Oklahoma City bombing. Tragedy is a fierce tailwind. And, as Susan Bandes puts it, “Nobody really wants to have to tell victims, or survivors of violent crime, that they cannot be heard.”
Critics remain. Nancy Gertner, a former district-court judge from Massachusetts, is among those who have questioned Judge Aquilina’s conduct at Larry Nassar’s sentencing. Gertner told me, “The question is whether the victims needed that, as bloodletting, and the question is should the justice system allow that? Or is it a throwback to public hanging?” Scott Sundby, a former prosecutor who studies capital juries, told me that the Nassar sentencing reminded him of Biblical punishments. “Hey, we all get to pick up a rock and throw it at this person!”
Sundby says that victim-impact evidence has changed how juries think about the death penalty. In jury rooms, they ask, “How can we go out and look the mother in the eye unless we give a death penalty?” Among the achievements of the victims’-rights movement is the fact that victim-impact evidence is no longer much questioned. Sundby thinks that’s because people gave up trying to argue that the courts are wholly rational. He says, “The legal system has cried ‘Uncle.’ ”
Such critics are careful to note the important reforms ushered in by the victims’-rights movement (which generally fall under the heading of victims’ services). “When this movement was first starting, I was a prosecutor,” Sundby told me, “and all of a sudden it made me much more cognizant that there are people who have a stake in this case and justice needs to be done.”
Raphael Ginsberg, who runs a prison-education program through the University of North Carolina and has written a history of the victims’-rights movement [PDF], takes a darker view. He sees the movement as part of a larger conservative attack on expertise and on the notion of a public good. It’s as if it came down to this: Don’t trust the mainstream media, don’t trust intellectuals, don’t trust judges: protect yourself and your family and your freedoms; buy a gun; speak your truth.
Not everyone finds relief in a courtroom, but many people who have endured a violent crime or lost someone they loved report feeling tremendous catharsis after having the chance to describe their suffering in court. Those who worry about the practice say that there should at least be better, fairer, and more clearly enforced rules about doing it. “If we really do think it’s important for victims in a courtroom to be able to do this,” Bandes says, “let’s take it seriously, and figure out how to get courts to do it right.”
Something was buried beneath the rubble in Oklahoma City, and it has never been found. Parkland is the next population of victims poised to mount the witness stand, in another unprecedented slaughter. So far, they’ve been mounting other sorts of podiums. The students from Marjory Stoneman Douglas High School hardly ever talk about the shooter, at least in public. They don’t seem particularly eager to attend his trial, if there is a trial. Maybe they’ll leave it to the state to conduct a prosecution. Meanwhile, they’re having their say, in their own way. They are asking for an end to a set of arrangements under which what was once civil society has become a state of war. # # #
[Jill Lepore is the David Woods Kemper '41 Professor of American History at Harvard University as well as the chair of its History and Literature Program. She has been a staff writer at The New Yorker since 2005. Her latest book will be These Truths: A History of the United States (forthcoming September 2018). See other books by Lepore here. She earned a BA (English) from Tufts University, an MA (American culture) from the University of Michigan, and a PhD (American studies) from Yale University.]
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