Poignant Videos of Victims Valid in Court

Video

Jesse Heller Tribute

This video depicts the life of Jesse Heller, 17, who was killed by a drunk driver in Minnesota in 2006. Prepared at his family's church, it was played at his memorial service and then at the sentencing hearing for the man convicted in his death.

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The California Supreme Court upheld the use of the video in the sentencing phase of the case, in which Douglas Oliver Kelly received the death penalty. That court also upheld a video showing 118 photos of Elmer Benson, 79, and his 74-year-old wife, Gladys, who were stabbed to death in their home in 1996. Narrated by their daughter, it closes by showing the markers on their graves, each adorned by a single red rose. The assailant, Samuel Zamudio, was sentenced to death.

Both men sought Supreme Court review, but the high court on Nov. 10 declined to take either case. Justice John Paul Stevens wrote a blistering statement objecting to the denials, while Justice David H. Souter said he would have accepted the Weir case. Justice Stephen G. Breyer issued a more mildly worded dissent.

"As these cases demonstrate, when victim impact evidence is enhanced with music, photographs, or video footage, the risk of unfair prejudice quickly becomes overwhelming," wrote Stevens, an avowed opponent of capital punishment.

Although some courts have set limits on videos -- in 2004, for example, a federal judge in Massachusetts banned one with 200 pictures set to Beatles and James Taylor music -- the video of Weir is the most elaborate that's been allowed, Young said.

"If I were a prosecutor, I'd see this as a green light," she added in an interview.

Until the early 1990s, victims and family members rarely testified about the impact of a crime, having been held back by a series of Supreme Court rulings that said such testimony would violate the defendant's constitutional rights. A 1991 Supreme Court decision reversed the prohibition, a key milestone for advocates who say victims have historically felt marginalized by the criminal justice system.

Writing for a 6 to 3 majority, then-Chief Justice William H. Rehnquist said prosecutors could balance the virtually unlimited defense mitigation evidence by offering "a quick glimpse of the life" of the victim. But the court laid out little specific guidance beyond saying that victim impact evidence must not be "unduly prejudicial." All 37 states that allow the death penalty and the federal government today allow victim impact evidence in some form, and it is common in capital trials. Videos usually accompany testimony from survivors about the impact of the loss.

Arkansas prosecutor Thomas Deen presented such testimony about the death of Casey Crowder, 17, who was strangled near an irrigation ditch. But he also felt the need for a brief visual depiction. So he chose a 26-second snippet of Crowder, filmed by her mother at a school concert, singing "Getting Into You" by the Christian rock group Reliant K.

"I'm not going to overdo it," Deen said. "I think I can get my point across to a jury without beating a dead horse. People can only take so much."

The defendant, Kenneth Ray Osburn, was sentenced in January to life in prison instead of death.

The video shows Crowder standing alone at a microphone, her passion for singing evident on her face. Her soaring voice ends with the line "I'm going to love you with my life" and lingers, eerily, over the word "life."

Music is also key to the emotional pull of the video of Heller, 17, killed in the 2006 car crash in a Minneapolis suburb that left his 20-year-old cousin with brain damage. Lawrence Maxcy, who was legally drunk, pleaded guilty in the death. Prepared at the family's church and played at Jesse's memorial service and then at the sentencing, the video is more sophisticated visually, with the camera slowly panning in and out as one photo of Jesse and his family gives way to another.

Jesse's father, John Heller, said he finds the debate over such videos befuddling. "I think they should be allowed, and there should be more of them," he said. "The whole history of this family has been changed. That has everything to do with the crime."