Trial rocked capital cases
High court decision over Memphis ruling allowed victim impact evidence
A jury had convicted a man of brutally killing her daughter and granddaughter, but not yet decided on a sentence, when Mary Zvolanek took the stand in a Memphis courtroom.
“He cries for his mom,” Zvolanek told the jury about her grandson, Nicholas Christopher, who had survived the attack. “He doesn't seem to understand why she doesn't come home. And he cries for his sister Lacie. He comes to me many times during the week and asks me, Grandmama, do you miss my Lacie. And I tell him yes. He says, I'm worried about my Lacie.”
Those few sentences, spoken during the sentencing phase of Pervis Payne's trial, would go on to change capital cases across the United States, opening the door for the widespread use of victim impact evidence in capital cases, when families and others describe the emotional impact caused by criminal acts. These victim impact statements are often delivered moments before a jury begins to deliberate over a possible death sentence.
Experts say victim impact evidence is both an advantage for prosecutors and a possible pitfall that can lead to racial disparities and increased emotionality in sentencing.
Payne, who is now on Death Row in Nashville, was tried and convicted in 1988 for the 1987 double murder of Nicholas' mother Charisse Christopher and his younger sister Lacie Jo Christopher, who was 2 at the time of her death. Although his execution was set for Dec. 3, 2020, Tennessee Gov. Bill Lee granted Payne a temporary reprieve until April 9, 2021 due to COVID-19. Payne has maintained his innocence.
But in 1991, Payne's case came before the U.S. Supreme Court due to the words of Mary Zvolanek and accompanying argument by prosecutor Phyl
“A State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim’s family is relevant to the jury’s decision as to whether or not the death penalty should be imposed.”
From U.S. Supreme Court ruling
lis Gardner.
Gardner, after Zvolanek spoke to the jury, urged jurors to consider that Charisse Christopher and Lacie Jo “lived exemplary lives” and to remember “The people who loved little Lacie Jo, the grandparents who are still here. The brother who mourns for her every single day and wants to know where his best little playmate is … These are the things that go into why it is especially cruel, heinous and atrocious, the burden that that child will carry forever.”
Twice, the U.S. Supreme Court had ruled against allowing victim impact evidence in capital cases. But in Payne, the Court reversed its prior decisions in Booth v. Maryland and South Carolina v. Gathers, holding that “if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar.”
The controversy behind victim impact evidence
Victim impact evidence isn’t about the facts of what happened, said Susan Bandes, Centennial Professor of Law emeritus at Depaul University College of Law. Rather, it’s about how the crime had an emotional impact, whether on family members of the victim or wider members of the community. And that is what makes it controversial.
“All these years after Payne, we’ve got a fair amount of empirical evidence about their impact and that they make capital juries upset and angry at the defendant and heighten the sympathy for the victim and victim’s family members and often correlate with getting the death sentence, so (prosecutors have) a lot of incentive to use them,” Bandes said.
One study conducted by professors at the University of Maryland found that subjects who viewed victim impact evidence “were more likely to feel negative emotions like anger, hostility, and vengeance; were more likely to feel sympathy and empathy toward the victim; and were more likely to have favorable perceptions of the victim and victim’s family as well as unfavorable perceptions of the offender.”
“We found that these positive feelings toward the victim and family were in turn related to a heightened risk of them imposing the death penalty,” the study said.
Indeed, victim impact evidence has become common in the aftermath of Payne, said John Blume, professor and director of the Cornell Death Penalty Project.
Virtually every death penalty state now allows victim impact evidence, Blume said, and it has been extended greatly to allow things like impact on the community in general.
“Payne opened the door to this and really the only limits the court put on this is that they’ve said surviving victims’ family members can’t ask for a particular sentence,” Blume said. “It’s often the central core of the prosecution’s presentation in requesting the death penalty.”
Victim impact statements open the door to comparison
Although the Supreme Court said explicitly that “such evidence is not generally offered to encourage comparative judgments,” it often does act as such, Blume said, with juries comparing the worth of the defendant and the victim.
“It’s also a way to inject, either consciously or subconsciously, race into the equation,” he said. “Race and class.”
While white victims account for approximately one-half of all murder victims, 80% of all Capital cases involve white victims, according to the ACLU. When victim impact evidence is given, that can allow for increased racial bias to play a role, Blume said. Bandes agreed.
“Now you also have evidence that juries seem more empathetic to victim impact statements by white victims’ families than black victims’ families and that exacerbates that devaluation of Black lives,” she said.
Meg Garvin, executive director of the National Crime Victim Law Institute, draws a distinction between victim impact evidence, which means calling someone as a witness, swearing them in and subjecting them to cross examination, and giving a victim impact statement akin to the defendant’s right of allocution.
And victim impact evidence can be complicated for families if they do not necessarily agree with the sentence being sought by the prosecutor, she said.
“I think what’s important and what gets lost in the system is that this is a moment when survivors should have independent counsel and should talk with them under attorney client privilege about what do you hope for, you have rights here, let’s talk about what those rights are,” she said. “The system does not readily accommodate victims’ rights.”
Kelley Henry, Payne’s present-day attorney, also sees victim impact evidence as a complex matter.
“I do believe that the victims family has the right to have their pain considered and acknowledged,” she said. “Unfortunately, the way the criminal legal system is set up particularly in capital cases is you’re asking the jury to make a moral judgment on whose life is worth more.”
It’s not for her to say whether overturning the Booth decision was the right call, Henry said.
Reforms possible
It concerns Henry that in the original Payne trial the prosecution “knew it was unconstitutional and were pushing the boundaries intentionally” when they used victim impact evidence, she said, raising questions about other evidence and tactics used.
Blume, from the Cornell Death Penalty Project, said victim impact evidence is politically popular and likely here to stay. However, there are possible reforms that could play a role in mitigating possible harms from using it in cases.
Those include having a mandatory pre-admissibility hearing outside the presence of a jury, requiring written submission of victim impact evidence and making sure to provide notice that victim impact evidence is going to be used, he wrote in a 2003 article in the Cornell Law Review.
Having those things outside the presence of a jury can allow a defense lawyer to object to improper testimony without seeming disrespectful, especially when a sympathetic person is giving emotionally heightened evidence, Blume said.
“It feels almost disrespectful to object, even if what they’re saying is inflammatory or relies on hearsay,” he said.
When Payne was decided
On the grandmother’s testimony in Payne, the U.S. Supreme Court ruled that “the testimony illustrated quite poignantly some of the harm that
Payne’s killing had caused; there is nothing unfair about allowing the jury to bear in mind that harm at the same time as it considers the mitigating evidence introduced by the defendant.”
“A State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim’s family is relevant to the jury’s decision as to whether or not the death penalty should be imposed. There is no reason to treat such evidence differently than other relevant evidence is treated.”
Not everyone agreed with the Court’s decision: Justice Thurgood Marshall dissented strongly, writing that, “Power, not reason, is the new currency of this Court’s decisionmaking. … Neither the law nor the facts supporting Booth and Gathers underwent any change in the last four years. Only the personnel of this Court did.”
Marshall resigned from the court that same day.
Katherine Burgess can be reached at katherine. burgess@commercialappeal.com.