Judge loses nerve in penalty phase

by Laurence H. Tribe

Having conducted a model trial during the proceedings to establish Timothy McVeigh's guilt in the Oklahoma City bombing case, Judge Richard Matsch became less sure-footed during the penalty phase.

To bolster their arguments that McVeigh should receive the death penalty, prosecutors were permitted by statute to show aggravating factors, including the impact of the crime on the victims and their families.

But Judge Matsch ruled that evidence of such loss had to be sanitized to shield the jury. "A penalty-phase hearing cannot be turned into some kind of lynching," he said. He warned that he would not allow testimony that "could inflame or incite the passions of the jury with respect to vengeance or the passions of the jury with respect to empathy for grief."

Thus the judge ruled that a victim's 9-year-old son could not tell jurors about the loss of his mother. No wedding photos, no poems, no home videos showing people who later died in the blast. Such evidence, Judge Matsch ruled, might distract jurors from a calm and "deliberate moral judgment as to whether the defendant should be put to death."

Despite the judge's attempts to anesthetize the proceedings, the bare descriptions of how this bombing affected its victims have filled his courtroom with tears; unadorned, the facts themselves tear at the soul.

Hence the issue: Should such pain and passion be part of the legal proceedings? Of course. They are vital to the legal and moral judgment the jury is to make. Just as the defense may properly seek to humanize Mr. McVeigh in order to inform the jury's moral judgment, so the prosecution may properly seek to humanize those he victimized. To treat emotion as a distraction is to confuse the jury with the Deep Blue composer.

Our legal system has long held that punishment should be determined not only by the defendant's intentions and background but also by the pain the defendant inflicted. It was on this basis that the Supreme Court ruled in 1991 that introducing evidence about a crime's impact on victims was constitutional: Fairness to the convicted defendant neither requires nor justifies "turning the victim into a 'faceless stranger at the penalty phase of a capital trial.'"

And Mr. McVeigh, don't forget, is a convicted murderer now. During the trial to determine guilt, while Mr. McVeigh was presumed innocent, Judge Matsch was right to exclude evidence that would generate more heat than light and cause jurors to lose sight of their solemn task: deciding whether Mr. McVeigh committed the crime.

At this stage of the trial, however, the horror of the crime -- far from being an inflammatory or prejudicial distraction -- is directly relevant to what the punishment should be. Now, the heat is part of the light.

Even in the penalty phase, of course, some evidence should be excluded as unduly prejudicial -- for instance, any evidence calling attention to a victim's race or religion, or anything else that could devalue the lives of minorities or dissidents.

But the victims of crime are allowed to testify precisely because they add something unique to the proceedings. Their suffering is not a distraction to be minimized, but a reality that a jury must confront in assessing the gravity of the offense.

Perhaps Judge Matsch shares the attitudes of those who regard victims as barely relevant to the criminal justice system, people whose involvement is to be tolerated but not welcomed. That attitude does more than sanitize a crime by muffling the cries of its victims. It adds terrible insult to tragic injury for the victims themselves, who may understandably feel that a crime's effects on their lives are being ignored.

Moral outrage and a few tears are not warnings that a "lynching" might occur; they are an appropriate response to Mr. McVeigh's monstrous crime. To render his victims faceless is not simply to blindfold justice but to give it an inhuman face.

Laurence H. Tribe is a professor of constitutional law at Harvard Law School.