Jury sentences James Holmes to life without parole

August 8, 2015

CTV reports,

Twelve jurors failed to agree on a death sentence for Colorado theatre shooter James Holmes, prompting shocked sobs from victims, police officers and his own mother. Holmes will instead spend the rest of his life in prison for fatally shooting 12 people.

The nine women and three men said they could not reach a unanimous verdict on each murder count. That automatically eliminates the death penalty for Holmes, who blamed the killings on mental illness.

/snip/

One juror told reporters outside court that there was a single juror who refused to give Holmes the death penalty and two others who were wavering. The key issue was Holmes’ mental illness.

“All the jurors feel so much empathy for the victims. It’s a tragedy,” the juror said, refusing to give her name. “It’s a devastating result no matter what. I am deeply, deeply sorry — that isn’t even the word.”

The verdict was a surprise because a week ago (before the victim impact testimony) the jury decided that the mitigation evidence did not outweigh the aggravation evidence. I was surprised since that is the legal test for deciding whether to impose the death penalty or life without parole. I suspect the change might be the due to the difference in believing you can kill someone versus actually doing it. Someone on that jury could not pull the proverbial trigger.

A month ago, I predicted this result when I wrote, James Holmes death penalty trial is a colossal waste of time and money.

The prosecution is seeking the death penalty even though there is no question that Holmes was mentally ill but legally sane at the time of the shootings — one psychiatrist diagnosed him as suffering from schizotypal disorder while a second psychiatrist diagnosed him as suffering from shizoaffective disorder — and he offered to plead guilty to a life-without-parole sentence. After the prosecution rejected the defense offer, Holmes changed his plea to not guilty by reason of insanity.

/snip/

We who have experience representing clients in death penalty cases* refer to the guilt phase in a slam dunk case like this as a slow-motion guilty plea. That is, when we lack a defense, instead of pleading guilty, we use the guilt phase to introduce evidence that mitigates the seriousness of the offense. Holmes’s insanity defense is doomed because he admitted to police that he knew killing was wrong. But there is no dispute that he was mentally ill. While not a defense, mental illness is a powerful mitigating factor and, as I’ve said previously, I think the jury will likely vote for a life-without-parole sentence after the penalty phase for the simple reason that killing somebody who was mentally ill through no fault of their own is morally and ethically repugnant to most people.

I’ve said this before and I will say it again, this trial has been a colossal waste of taxpayer time and money.

*I was a death penalty lawyer until I retired in 2005.

 


Dzhokhar Tsarnaev Death Penalty Trial Started Today

January 5, 2015

Dzhokhar Tsarnaev goes on trial for his life today in federal court in the so-called Boston Marathon Bomber case. First up will be jury selection, which is expected to take about three to four weeks with the trial expected to last until late May or June. The Court will be attempting to seat a jury of twelve, plus six alternates, who can devote the next six months of their lives to fairly and impartially listening to the evidence and deciding the case. Given extensive pretrial publicity and a consuming regional interest in the case, the Court may discover that it cannot find 18 people who have not prejudged the case. If that happens, the Court will have to move the trial to another district in the United States.

Meanwhile, CNN is reporting today that the government rejected a defense offer to plead guilty in return for a sentence of life without parole.

The Court has summoned over 1200 people to report over the course of the next three days at a rate of 250 people per half-day session. At each session, the prospective jurors will be given a questionnaire in which they will be directed to write down what, if anything, they recall and disclose if they have formed any opinions about the bombing and Tsarnaev’s guilt or innocence. They will also be asked to state their views about the death penalty. Copies of the completed questionnaires will be provided to counsel. Voir dire probably will begin next week after counsel have reviewed the questionnaires.

The jury selection process will take much longer than usual because the prospective jurors must be death qualified. That has to happen before the trial starts because, if the defendant is convicted, the same jury will have to decide whether to sentence the defendant to death or life without possibility of parole. By death qualification, I mean eliminating all prospective jurors who would automatically sentence the defendant to death or to life without possibility of parole without weighing the evidence admitted in mitigation against the evidence admitted in aggravation as required by the jury instructions. Opposition to the death penalty in the United States is highest in the Boston area. Therefore, do not be surprised if half or more of the prospective jurors are excused for cause because of their opposition to the death penalty. Since those prospective jurors tend to be better than others on reasonable doubt, you can reasonably expect the jury to be conviction prone.

For more information about the importance of death-qualifying a jury and how the defense will do it, please read:

Death Penalty Cases are Won or Lost During Jury Selection

Using the Colorado Method of Jury Selection in Tsarnaev Death Penalty Trial

Let’s take a brief look at the government’s case.

Dzhokhar Tsarnaev is accused of conspiring with his brother Tamerlan to assemble, place and detonate two IED’s (improvised explosive devices) near the finish line of the Boston Marathon on April 15, 2013. The indictment alleges that the two explosions killed a child and two adults and injured scores of other people. They also are accused of ambushing and shooting to death an MIT campus police officer four days later in a failed attempt to steal his gun and with carjacking a Mercedes sedan and kidnapping the driver who escaped on foot when they stopped for gas. The driver called 911 and provided information that enabled the police to find the Mercedes and the brothers in Watertown via GPS. A dramatic shootout ensued that ended with Dzhokhar running over his brother with the Mercedes and escaping into the night. The indictment alleges that he abandoned vehicle a few blocks away and hid in a trailered boat parked in a backyard. The owner of the boat discovered him there and called 911. Police responded quickly and, after shooting up the boat, they arrested him.

If the jury finds Dzhokhar Tsarnaev guilty, the biggest obstacle I see to an LWOP sentence is the death of the 8-year-old child because the jury probably decided that he intentionally placed the backpack containing the IED close to the child. If so, that act is absolutely chilling and the most difficult act to forgive. To make matters worse, his sister lost a leg.

It’s difficult to imagine the emotional impact of witnessing a child’s violent death. I still suffer PTSD from looking at crime scene and autopsy photos of dead children. This jury will get to see the boy die and it will be difficult for them to be merciful, especially if they believe in the death penalty.

Dzhokhar scrawled this note on a wall inside the boat,

The U.S. Government is killing our innocent civilians; I can’t stand to see such evil go unpunished; We Muslims are one body, you hurt one you hurt us all; Now I don’t like killing innocent people it is forbidden in Islam…. stop killing our innocent people and we will stop.

Judy Clarke and David Bruck have their work cut out for them.

For more information about the lawyers who make up the Federal Death Penalty Resource Counsel, go here.


Using Colorado Method of Jury Selection in Tsarnaev Death Penalty Trial

January 2, 2015

Friday, January 2, 2015

Good afternoon:

Jury selection in Dzhokhar Tsarnaev’s death penalty trial is scheduled to start in federal court in Boston on Monday morning. Today I want to introduce readers to the Colorado Method of jury selection in a capital case. Many lawyers have used it to save lives, including myself, and I am reasonably certain that Tsarnaev’s defense team will use it.

18 USC 3593(e)(3) provides in pertinent part,

[T]he jury . . . shall consider whether all the aggravating factor or factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist to justify a sentence of death, or, in the absence of a mitigating factor, whether the aggravating factor or factors alone are sufficient to justify a sentence of death. Based upon this consideration, the jury by unanimous vote . . . shall recommend whether the defendant should be sentenced to death, to life imprisonment without possibility of release or some other lesser sentence.

This statute requires the jury to decide whether the evidence in aggravation (evidence about the crime committed and its impact on the victims) outweighs the evidence in mitigation (evidence about Dzhokhar Tsarnaev’s youth and immaturity and how he was influenced by his dominant older brother and coconspirator Tamerlan Tsarnaev) and unanimously recommend “whether the defendant should be sentenced to death, to life imprisonment without possibility of release or some other lesser sentence.”

The key word is ‘unanimously.’

What happens if the jury is not unanimous?

18 USC 3594 provides,

Upon a recommendation under section 3593 (e) that the defendant should be sentenced to death or life imprisonment without possibility of release, the court shall sentence the defendant accordingly. Otherwise, the court shall impose any lesser sentence that is authorized by law. Notwithstanding any other law, if the maximum term of imprisonment for the offense is life imprisonment, the court may impose a sentence of life imprisonment without possibility of release.

In other words, it only takes one juror to vote for LWOP instead of death to avoid a death sentence.

The Colorado Method was designed to maximize the probability of persuading at least one juror to vote against the death penalty. Michael Rubenstein describes the method this way:

The Colorado Method of capital voir dire is a structured approach to capital jury selection that is being used successfully in state and federal jurisdictions across the United States. Colorado Method capital voir dire follows several simple principles: (1) jurors are selected based on their life and death views only; (2) prodeath jurors (jurors who will vote for a death sentence) are removed utilizing cause challenges, and attempts are made to retain potential life-giving jurors; (3) pro-death jurors are questioned about their ability to respect the decisions of the other jurors, and potential life-giving jurors are questioned about their ability to bring a life result out of the jury room; and (4) peremptory challenges are prioritized based on the prospective jurors’ views on punishment.

Readers who have served on a jury in a non-death penalty case may recall that they were instructed to attempt to reach a unanimous verdict. That instruction cannot be given in the penalty phase of a capital case. Instead, jurors are instructed to vote their conscience after fully and fairly considering all of the evidence.

Therefore, the Colorado Method involves conditioning each juror to,

(1) realize that their decision will determine if the defendant lives or dies;

(2) accept full responsibility for their decision

(3) vote their conscience; and

(4) respect the rights of others to make up their own minds.

As in most death penalty trials, the outcome of the Tsarnaev trial likely will be determined in jury selection before the first witness testifies for the prosecution.


Why the Jordan Davis murder was not a death-penalty case and update on Jodi Arias

October 2, 2014

Thursday, October 2, 2014

Good morning:

Several readers have asked why the prosecution did not seek the death penalty in the Michael Dunn case.

It is not a death-penalty case.

The death penalty is reserved for the most egregious premeditated murders. In other words, it applies to premeditated murders with “aggravating circumstances” that are listed in the death-penalty statute.

For example, a premeditated intent to kill a witness to a crime you have committed in order to conceal the crime you have committed is an aggravating circumstance that qualifies for the death penalty. A rape murder qualifies where the purpose of the murder is to prevent the victim from reporting the rape and identifying the rapist.

Other examples are premeditated murders of certain people such as police officers, judges, prosecutors, defense attorneys and children under age 12.

Another example that might have applied to Dunn, if he had killed the other boys in the Dodge Durango, is multiple victims. This statutory aggravating factor also would apply to terrorist bombings, such as the Oklahoma City and Boston Marathon bombings.

The Jodi Arias case provides another example. She is charged with killing her former boyfriend, Travis Alexander, with premeditation and the aggravating factor alleged in the indictment is that she killed him in a “cruel, heinous, or depraved” manner. Wikipedia describes the killing:

The killing of Travis Alexander occurred on June 4, 2008. On June 9, 2008, Alexander’s body was discovered by his friends in a shower at his home in Mesa, Arizona. Alexander had been stabbed repeatedly, with a slit throat and a fatal gunshot wound to the head. There have been conflicting reports over the number of stab wounds; some reports state that Alexander had been stabbed 29 times, while others state 27 times. Medical examiner Kevin Horn testified that Alexander’s jugular vein, common carotid artery, and windpipe had been slashed. Alexander had defensive wounds on his hands. Horn further testified that Alexander “may have” been dead at the time the gunshot was inflicted, and that the back wounds were shallow. Alexander’s death was ruled a homicide. He was buried at the Olivewood Cemetery in Riverside, California.

Arias was convicted of premeditated murder, but the jury was unable to unanimously agree that death was the appropriate penalty.

The parties are now attempting to select a new penalty-phase jury. ABC News is reporting that more than half of the 400 prospective jurors have been dismissed because they were too familiar with the case and could not fairly and impartially evaluate the evidence in deciding whether she should be sentenced to death or life without possibility of parole.

The effort to select a jury continues today.

Unfortunately, there is no television or live-stream coverage.

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Greene County prosecutor may seek death penalty for Craig Wood

February 21, 2014

Friday, February 21, 2014

Good afternoon:

According to KMOV.com, Greene County Prosecuting Attorney, Dan Peterson, has announced that he intends to seek the death penalty against Craig Michael Wood for the kidnap and murder of 10-year-old Hailey Owens.

If true, such an announcement is premature and improper.

For the following reasons, a prosecutor’s decision to seek the death penalty should be delayed until defense counsel has had a reasonable opportunity to prepare and submit a report regarding the evidence that it would present to a jury in support of a request for an LWOP sentence instead of the death penalty.

First, the United States Supreme Court (SCOTUS) has ruled that the death penalty can only be imposed in some, but not all murder cases, and there is no murder, no matter how aggravated, gruesome or depraved, that automatically warrants the death penalty.

Instead, the jury or the judge in a case where the defendant waives his right to a jury trial, must decide whether to impose the death penalty by weighing evidence in aggravation (i.e, the manner in which the crime was committed and the defendant’s criminal record) against evidence in mitigation (e.g., youthful age, immaturity, developmental disability, mental illness, diminished capacity, minimal role in a multiple defendant case and absence of a criminal record are some, but not all of the factors that might call for a sentence of LWOP rather than the death penalty).

Second, since there is no murder for which the death penalty is automatic, a prosecutor’s decision to seek it should be based on a thoughtful consideration of both the aggravating and mitigating evidence in the case.

Third, since the prosecution must necessarily rely on defense counsel to discover and disclose the mitigating evidence before it decides to seek or not to seek the death penalty, it must give defense counsel an adequate period of time to prepare a mitigation report.

Pursuant to current practice in most jurisdictions, the prosecution initiates the process of deciding whether to seek the death penalty by obtaining an indictment for a death-penalty eligible murder. The prosecutor then has a specific period of time (typically at least 30 days) following the defendant’s arraignment on the charge or charges in the indictment within which to decide whether to file a notice that it intends to seek the death penalty, if the defendant is convicted of the death penalty eligible murder.

This deadline is often extended by agreement of the parties for a period of months (1) to allow the defense a reasonable opportunity to prepare a mitigation report and (2) to allow the prosecution a reasonable opportunity to review it.

A meeting usually takes place a day or so before the deadline during which lawyers for both sides discuss the relative merits and demerits of their respective positions. These meetings are surreal because they are discussions that presuppose the defendant will be convicted and focus on whether he should live or die.

Sometimes the prosecution decides not to seek the death penalty, in which case it does not file the notice.

Sometimes it does.

If followed in good faith, this process assures that the decision to seek the death penalty will not be based on a defendant’s refusal to plead guilty.

Indeed, ethical prosecutors should be opposed to using the death-penalty as a bargaining chip in plea negotiations.

Plead-guilty-as-charged-and-agree-to-a-sentence-to-life-without-possibility-of-parole (LWOP)-or-I-will-seek-the-death-penalty is extortion of the worst sort because it forces a defendant to gamble with his life, if he wants to exercise his right to a jury trial. We have seen far too many wrongful convictions of innocent people to allow a prosecutor to extort guilty pleas in premeditated murder cases.

There is one important exception to this process and that occurs when a defendant seeking to avoid the death penalty offers to plead guilty in exchange for an LWOP sentence. In this situation, the defendant’s desired outcome is an LWOP sentence and he is not being forced to accept it.

For example, in the Green River Killer case in Seattle, Gary Ridgway offered to plead guilty to 48 premeditated rape murders in exchange for providing information about the location of missing bodies. The prosecution accepted his offer, so he is serving LWOP.

Craig Michael Wood is charged with kidnapping and murdering 10-year-old Hailey Owens. This is potentially a death-penalty-eligible offense under Missouri law because it is a premeditated murder committed while engaged in a kidnapping offense and the victim was a witness or potential witness against him.

The offense probably also qualifies as a murder “outrageously or wantonly vile, horrible or inhuman.”

Whether Dan Peterson has already made up his mind or will follow the process I have described in good faith or eventually use the death penalty as a bargaining chip in plea negotiations remains to be seen.

Ironically, such an offer might be quickly snapped up by the defense, if the evidence of guilt is as overwhelming as it now appears to be.


Explanation of the Jodi Arias sentencing hearing

May 9, 2013

Thursday, May 9, 2013

Good morning:

The jury convicted Jodi Arias of premeditated first degree murder yesterday. Next up is the sentencing. The same jury that convicted her of premeditated murder will decide whether to impose the death sentence.

The hearing is scheduled to start at 1 pm, PDT (4 pm EDT).

Jodi Arias has stated that she wants to be sentenced to death. She has a right to testify and may request that sentence. She may have changed her mind, however.

There is no premeditated murder, no matter how egregious, that automatically results in a death penalty.

Court will reconvene at 1:00 pm PDT for the Eligibility Phase of the trial. This phase is also called the aggravation hearing because the prosecution will have to prove an aggravating circumstance beyond a reasonable doubt. The aggravating circumstance alleged in the indictment is that the premeditated murder was “especially cruel.”

The prosecution will probably call the Medical Examiner who performed the autopsy to testify regarding how long the victim remained conscious after she initiated the assault and the extent to which he may have suffered pain and emotional distress before losing consciousness and dying.

The more extreme his suffering and emotional distress, the more likely the jury will decide that the murder was especially cruel.

The defense can call its own expert or rely on cross examining the State’s expert.

Both sides will have an opportunity to argue whether the prosecution proved beyond a reasonable doubt that the premeditated murder was especially cruel.

The Court will instruct the jury as follows regarding the meaning of the term “especially cruel.”

The term “cruel” focuses on the victim’s pain and suffering. To find that the murder was
committed in an “especially cruel” manner you must find that the victim consciously suffered
physical or mental pain, distress or anguish prior to death. The defendant must know or should
have known that the victim would suffer.

Potential consequences:

If the State does not prove beyond a reasonable doubt that an aggravating circumstance
exists, the judge will sentence the defendant to either life imprisonment without the
possibility of release, or life imprisonment with the possibility of release after 25 [35] years.

If the jury unanimously decides beyond a reasonable doubt that an aggravating circumstance
does exist, each juror will decide if mitigating circumstances exist and then, as a jury, you will
decide whether to sentence the defendant to life imprisonment or death. If the sentence is
life imprisonment then the judge will sentence the defendant to either life imprisonment
without the possibility of release from prison, or life imprisonment with the possibility of
release from prison after 25 [35] years.

“Life without the possibility of release from prison” means exactly what it says. The
sentence of “life without possibility of release from prison” means the defendant will never
be eligible to be released from prison for any reason for the rest of the defendant’s life.

If the jury concludes that the prosecution proved beyond a reasonable doubt that the premeditated murder was especially cruel, the sentencing will proceed to the Penalty Phase.

The judge will then read the following instruction to the jury:

While all twelve of you had to unanimously agree that the State proved beyond a
reasonable doubt the existence of a statutory aggravating circumstance, you do not need to
unanimously agree on a particular mitigating circumstance. Each one of you must decide
individually whether any mitigating circumstance exists.

You are not limited to the mitigating circumstances offered by the defendant. You must
also consider any other information that you find is relevant in determining whether to
impose a life sentence, so long as it relates to an aspect of the defendant’s background,
character, propensities, record, or circumstances of the offense.

The defendant bears the burden of proving the existence of any mitigating circumstance
that the defendant offers by a preponderance of the evidence. That is, although the
defendant need not prove its existence beyond a reasonable doubt, the defendant must
convince you by the evidence presented that it is more probably true than not true that such
a mitigating circumstance exists. In proving a mitigating circumstance, the defendant may
rely on any evidence already presented and is not required to present additional evidence.
You individually determine whether mitigation exists. In light of the aggravating
circumstance[s] you have found, you must then individually determine if the total of the
mitigation is sufficiently substantial to call for leniency. “Sufficiently substantial to call for
leniency” means that mitigation must be of such quality or value that it is adequate, in the
opinion of an individual juror, to persuade that juror to vote for a sentence of life in prison.
Even if a juror believes that the aggravating and mitigating circumstances are of the same
quality or value, that juror is not required to vote for a sentence of death and may instead
vote for a sentence of life in prison. A juror may find mitigation and impose a life sentence
even if the defendant does not present any mitigation evidence.

A mitigating factor that motivates one juror to vote for a sentence of life in prison may
be evaluated by another juror as not having been proved or, if proved, as not significant to
the assessment of the appropriate penalty. In other words, each of you must determine
whether, in your individual assessment, the mitigation is of such quality or value that it
warrants leniency in this case.

The law does not presume what is the appropriate sentence. The defendant does not
have the burden of proving that life is the appropriate sentence. The State does not have the
burden of proving that death is the appropriate sentence. It is for you, as jurors, to decide
what you individually believe is the appropriate sentence.

In reaching a reasoned, moral judgment about which sentence is justified and
appropriate, you must decide how compelling or persuasive the totality of the mitigating
factors is when compared against the totality of the aggravating factors and the facts and
circumstances of the case. This assessment is not a mathematical one, but instead must be
made in light of each juror’s individual, qualitative evaluation of the facts of the case, the
severity of the aggravating factors, and the quality of the mitigating factors found by each
juror.

If you unanimously agree there is mitigation sufficiently substantial to call for leniency,
then you shall return a verdict of life. If you unanimously agree there is no mitigation, or the
mitigation is not sufficiently substantial to call for leniency, then you shall return a verdict of
death.

Your decision is not a recommendation. Your decision is binding. If you unanimously
find that the defendant should be sentenced to life imprisonment, your foreperson shall sign
the verdict form indicating your decision. If you unanimously find that the defendant should
be sentenced to death, your foreperson shall sign the verdict form indicating your decision.
If you cannot unanimously agree on the appropriate sentence, your foreperson shall tell the
judge.

And there you have it.

Go here to read the full set of pattern jury intructions for the Eligibility and Penalty Phases.

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The Difference Between Homicide And Murder

October 23, 2011

Although states vary in their definitions, the majority of states define homicide is the unlawful killing of a human being. Killing a person in self-defense is a lawful killing of another person. Therefore, it is not a homicide.

There are four degrees of homicide which vary according to the actor’s state of mind when he or she commits an act that causes the death of another person. The four degrees of homicide are:

1. Murder in the First Degree (premeditated intent to kill another person). Note that premeditation is defined as forming the specific intent to kill before committing the act that causes the death of another person. There is no established minimum amount of time, but the actor must have had an opportunity to reflect on the decision to kill before committing the act that causes death.

2. Murder in the Second Degree (intentional murder). In effect, the actor forms the specific intent to kill another person and acts immediately such that the formation of intent and the act occur simultaneously or so close together that there is no opportunity to reflect on the decision. Murder in the Second Degree typically involves killing another person in the heat of passion.

3. Manslaughter in the First Degree (reckless killing). The actor engages in conduct knowing that there is a substantial risk that the conduct will cause the death of another person. The typical example is playing Russian Roulette with another person. There is no intent to kill, but a death results nevertheless.

4. Manslaughter in the Second Degree (criminally negligent killing). The actor causes the death of another person while committing an act that he should have known would likely cause the death of another person and his failure to know that constitutes a gross deviation from the standard to act with due care to avoid injuring others.

Depending on whether a state has the death penalty, there is another category called Aggravated Murder, which is a premeditated murder with aggravating circumstances.

Aggravating circumstances are defined by statute and typically include the premeditated killing of another person to conceal the commission of another crime. For example, a rapist kills the victim to prevent her from reporting the crime and identifying him. Other examples include the premeditated murder of a cop or a judge. In each case the aggravating circumstance is the purpose behind the premeditated intent to kill.

The death penalty is not automatically imposed upon conviction of aggravated murder, no matter how heinous or depraved. Instead, a sentencing hearing is held after the jury convicts the defendant of aggravated murder in which the same jury that convicted him considers evidence submitted by the prosecution in aggravation of the offense and evidence offered by the defense in mitigation of the offense.

Evidence in aggravation includes the evidence the jury already heard about the offense in the guilt phase, a statement from a friend of the victim or member of the victim’s family who testifies regarding the impact of the victim’s death on the witness or family, and evidence of the defendant’s prior record of criminal convictions, if any exists.

Evidence in mitigation is evidence about the defendant, such as organic brain disorder, limited intellectual functioning, mental illness, victim of childhood sexual abuse or assault, or the defendant’s role in committing the murder (e.g., an accomplice who assisted another person to commit the murder but who did not commit the murder and may not have even been present when it occurred) that in fairness or mercy warrants a sentence of life without possibility of parole instead of the death penalty.

In Washington State where I handled all of my death penalty cases, the final instruction given to the jury after both sides rest in the penalty phase is as follows:

Having in mind the crime of which the defendant has been convicted, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit a sentence of less than death?

The jury also is instructed that the law presumes that the appropriate sentence is life without possibility of parole unless the prosecution overcomes that presumption with proof beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit the life without parole sentence.

The jury must be unanimous to impose the death sentence.


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