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What's next: The penalty phase

BY JESSICA LOGAN, Californian staff writer
e-mail: jlogan@bakersfield.com | Tuesday, May 15 2007 1:41 PM

Last Updated: Wednesday, May 16 2007 7:20 AM

The death penalty phase of Vincent Brothers’ trial promises to open the floodgates of emotion held back during the guilt phase.

The Harper family will be able to tell the jury about the pain of losing their mother, sister and the three children. This kind of emotion is withheld from the guilt phase.

“Victim impact statements are a subject of much controversy as to how much will be allowed,” said Elisabeth Semel, a professor of law at UC Berkeley’s law school and the head of its death penalty clinic.

The prosecutor also will be able to use the crime itself against Brothers in arguing he deserves to die, experts say.

“The prosecution could simply stress the depravity of the crime, the premeditation and elaborate planning that went into a crime like this,” said University of Southern California law professor and former prosecutor Jean Rosenbluth.

Legal experts say both sides will likely spin Brothers’ history as a successful member of the community their own way.

The prosecution will likely argue that Brothers had everything going for him, yet committed this crime anyway, said Laurie Levenson, a criminal law professor at Loyola Law School in Los Angeles.

But the defense may argue that Brothers can be redeemed and is worth keeping alive because he has shown a pattern of helping others as a former vice principal and teacher.

UC Hastings College of the Law professor Evan Lee said Brothers may enter the death penalty phase with one strike against him because the jurors are primarily white.

“I think it’s hard for white people to identify with a black man, not in a conscious way, but subconsciously,” Lee said.

The defense will have to reveal Brothers’ human side to save his life, some experts say.

“It’s all about explaining who this person is, seeing him as a human being — more than the worst thing he’s ever done — and only by seeing him as more than the worst thing he has ever done can the jurors vote for life,” Semel said.

As in the guilt phase, each attorney will argue and put on evidence.

The prosecution must prove the defendant committed the crime beyond a reasonable doubt in the guilt phase.

But in the penalty phase, the jurors give each element of evidence the weight they believe it deserves and decide if the defendant should live or die.

Legal experts say jurors require an even higher level of proof in the penalty phase.

“Jurors want to be absolutely sure,” Levenson said.