Investigation Factors Aid in Penalty Phase
There is more to capital crime investigation than solving the case. Identifying the culprit and establishing the elements of a crime are indispensable, to be sure. However, no less essential is the investigation of factors affecting the penalty for the crime.
Murder is punishable by death in Kentucky. So is kidnapping, if it led to the victim’s death. An automatic death sentence is forbidden by interpreting the Eighth Amendment in Woodson v. North Carolina, 428 U.S. 420 (1976). In a capital case, the judge or jury always has the discretion to impose a life sentence or term of years instead of the death penalty KRS 532.030(4).
In some cases, the prosecutor may seek a life sentence or term of years instead of death for a capital crime. This may include an aggravated form of a life sentence Mina v. Commonwealth, 2013 WL 4608052 (Ky. 2013). The prosecutor in a capital case is not required to seek death as a sentencing option Buchanan v. Kentucky, 483 U.S. 402 (1987).
The Kentucky Penal Code authorizes three different life sentences as alternatives to the death penalty in capital cases KRS 532.030(1). They differ in relative severity. They also depend on the presence or absence of statutory aggravating circumstances. This potential for an aggravated form of life sentence may shape a capital-crime investigation.
The most common form of life sentence is often called straight life. The defendant is eligible for parole consideration after serving 20 years KRS 439.3401(2).
In addition to straight life are two kinds of aggravated life sentences. Life 25 is one. The defendant is eligible for parole consideration after serving 25 years. The other is life without parole (LWOP). The defendant is never supposed to be eligible for parole consideration.
A killer who was a juvenile at the time of the crime is exempt from the death penalty (Roper v. Simmons, 543 U.S. 551 (2005)). Under Kentucky law, a juvenile killer may be sentenced to life 25, but not LWOP. KRS 640.040(1).
“Murder is a capital offense,” as written in KRS 507.020(2). “Kidnapping is a capital offense when the victim is not released alive …,” states KRS 509.040(2). With capital kidnapping, the victim’s death does not have to result from homicide, nor must the victim’s death be caused by the kidnapper. ) St. Clair v. Commonwealth, 455 S.W.3d 869 (Ky. 2015)).
It is more accurate to say that murder or fatal kidnapping are capital offenses if there is at least one aggravating circumstance specified in KRS 532.025(2)(a). Only then is murder or fatal kidnapping punishable by the whole range of sentence options, including death. In summary, these statutory aggravating circumstances are:
The killer has a prior capital conviction or substantial history of serious assaultive criminal convictions.
The victim was killed in the course of first-degree arson, robbery, burglary, rape or sodomy.
A weapon of mass destruction risked multiple deaths in a public place.
The murder was for profit.
The victim was a corrections officer.
The killer intentionally caused multiple deaths.
The defendant intentionally killed a state or local public official, police officer, sheriff or deputy.
The defendant was violating a protective order or terms of probation or parole.
Without at least one of these eight statutory aggravating circumstances, the killing cannot be prosecuted as a genuinely capital offense. There is no potential for the death penalty or an aggravated form of life sentence unless at least one of these eight statutory aggravating circumstances is proven beyond a reasonable doubt (St. Clair v. Commonwealth, 451 S.W.3d 597, 629 (Ky. 2014) (murder); St. Clair v. Roark, 10 S.W.3d 482, 486 (Ky. 1999) (kidnapping)).
In the absence of a statutory aggravating circumstance, the case must be prosecuted as a Class A felony instead. The most severe punishment for a Class A felony is straight life. KRS 532.030(2); KRS 532.060(2)(a)).
Once a statutory aggravating circumstance is established, other sentencing factors may be considered. Among these are non-statutory aggravating circumstances. A non-statutory aggravating circumstance could be anything that reflects negatively on the defendant and his crime. It must be relevant to the case. The ordinary rules of evidence apply. Proof of overall bad character or uncharged crimes is generally not admissible.
Certain non-statutory aggravating circumstances may be of special interest to the investigator. Among these are the killer’s future dangerousness, lack of remorse, the heinousness of the crime, premeditation, evil motive, depravity and impact on the victim’s family – to name a few. Experience teaches that the most consequential of these by far is future dangerousness. It makes sense that a juror who fears the defendant will kill again, if given a chance. is inclined to impose a harsher sentence.
The investigator must also be mindful of mitigation evidence. The judge or jury may view a mitigating circumstance as a reason to lessen the punishment that otherwise would be imposed. It is the opposite of an aggravating circumstance.
Brady v. Maryland, 373 U.S. 83 (1963) requires police to collect, preserve and report exculpatory evidence to the prosecutor – who in turn must report it to the defense. Mitigation evidence, which tends to reduce culpability for a crime already proven, is akin to exculpatory evidence, which tends to disprove guilt not yet established. In either event, it is potentially beneficial to the defense and could affect the outcome of the case.
Exculpatory evidence that diminishes the confidence of guilt can be seen as having some mitigating effect also. Brady applies equally to mitigation (Cone v. Bell, 556 U.S. 449 (2009)). It also applies to impeachment evidence (Strickler v. Greene, 527 U.S. 263 (1999)).
KRS 532.025(2)(b) lists statutory mitigating circumstances which are summarized as:
The defendant’s criminal history is insignificant.
The defendant had an extreme mental or emotional disturbance insufficient to constitute a defense.
The victim was a participant.
The defendant believed there was moral justification or extenuation insufficient to constitute a defense.
The defendant’s complicity was relatively minor.
The defendant was under duress or domination of another insufficient to constitute a defense.
The defendant was impaired by mental illness, intellectual disability or intoxication insufficient to constitute a defense.
The defendant was young.
There also are non-statutory mitigating circumstances. These typically include the defendant’s addiction, unhappy childhood and history of head trauma.
Defense lawyers often use expert witnesses to establish mitigation. A mental health expert bedazzles the jury with diagnoses of impressive-sounding mental disorders. The prosecutor may join the battle of experts, but experience shows that lay testimony found by the investigating officer is more effective in refuting the claim. A jury is more likely to believe a convenience store clerk or acquaintance who says the defendant was acting himself that day. The investigator’s revelation refutes an unhappy childhood claim that all the defendant’s siblings served honorably in the United States Armed Forces.
An investigator familiar with the legal effects of aggravating and mitigating circumstances is well positioned to help the court achieve an outcome fair to all concerned. That is all the public expects.
