Wednesday, September 26, 2012

OK Prosecutors' Flouting of Law Prohibiting Improper Victim-Impact Testimony in Capital Cases

DeRosa v. Workman, 2012 WL 3974496 (9/11/12) (Okl.) (Published) - An interesting dissent by Judge Lucero to a denial of rehearing en banc in an Okl. capital case. Judge Lucero notes that prosecutors and the Oklahoma courts, including the appellate courts, have repeatedly [6 times recently, he says] and intentionally refused to abide by clear S. Ct. law that prohibits victim-impact testimony in which the victim pleads to the jury to give the death penalty. Judge Lucero acknowledges precedent precludes finding such an error to be structural [and thus immune from harmless error review], but he urges a more searching application of the harmless error test with respect to this intentional disobedience of the constitution. He observes: "The fact that a capital defendant committed a horrible crime cannot be an excuse to repeatedly ignore constitutional errors at sentencing." He also points out the plea for death by a woman whose parents were brutally murdered, as happened in this case, certainly would have an effect on the jury.