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Poignant Videos of Victims Valid in Court
Justices Decline to Weigh Use of Such Portrayals

By Jerry Markon
Washington Post Staff Writer
Saturday, November 29, 2008

The images are those of any childhood: a toddler wearing a snowsuit; a young boy fishing with his dad, a teenager mugging for the camera with his friends. Green Day's modern prom-night classic "Time of Your Life" plays in the background.

But Jesse Heller never made it to prom. He was killed by a drunk driver in 2006. Still, the video memorializing his life has a special resonance for the family of the Minnesota teen. When prosecutors asked to show it in court, his parents quickly agreed. Testifying, they felt, was just too hard.

"Everybody had tears in their eyes, even the security guards," Jesse's mother, Dawn Heller, said of the DVD that helped secure a 22-year prison term for the man who broadsided her son's truck at a stop sign -- on Mother's Day. "I believe it had an impact."

That is just the point. Fueled by technology and a powerful victims' rights movement, "victim impact videos" are becoming staples in criminal trials nationwide. The increasingly sophisticated multimedia presentations depict victims from cradle to grave, often with soft music in the background, tugging on the heartstrings of jurors. Defense lawyers say the videos are highly prejudicial and have sought to have them banned.

But the Supreme Court this month declined to hear challenges to two such videos, including one of Sara Weir, a dark-eyed 19-year-old who was raped and murdered in 1993. The video contains more than 90 photos of Weir and is set to the haunting tones of Enya.

As a result of the court's decision, experts say the use of such videos will probably accelerate in coming years.

"The publicity from the Supreme Court cases is going to make more victims and prosecutors aware of the possibility of technology-aided victim impact statements," said Margaret Garvin, executive director of the National Crime Victim Law Institute. "And I think that's a good thing."

Prosecutors vigorously defend the videos, which are presented as part of "victim impact evidence" in death penalty and non-capital homicides and are usually put together by families, sometimes with help from law enforcement or funeral homes. With defendants able to present extensive "mitigating evidence," prosecutors say multimedia is often the best way to document the life that was extinguished and the pain of those left behind.

"You're talking about 20 minutes that actually lets the jury see these people walking and breathing and moving," said Matt Murphy, an Orange County, Calif., prosecutor who helped splice together a 25-minute video of Tom and Jackie Hawks, killed in what authorities called a plot to steal their yacht. Jurors this month recommended the death penalty for defendant Skylar Deleon after seeing the video, which was culled from home movies and shows the couple smiling and swimming during their final vacation and holding their infant grandchild.

"I can see why these videos drive defense lawyers crazy because they actually balance things out," Murphy said.

Evan Young, the lawyer who failed to persuade the Supreme Court to take up the Weir video challenge, said she thinks they tilt the scales against defendants. "Without limits on the use of this technology," she wrote in her brief, "capital trials become theatrical venues, and the determination whether a defendant receives a death sentence turns on the skill of a videographer."

The 20-minute video in that case documents virtually the entire life of Weir, who was killed by a man she befriended at a fitness center. Narrated by Weir's mother, it shows Weir smiling as an infant, dressing for Halloween, sitting with Santa Claus, singing in junior high school and graduating from high school. It ends with pictures of her grave and horsemen riding across the countryside, described as "the kind of heaven" where Weir belongs.

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."

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