In states that permit the death penalty, there are often two separate phases of the trial—the guilt phase and the penalty phase.  Murder is the only crime for which someone may be sentenced to death.  A murder that is eligible for the death penalty is called a capital murder. Often, there must be certain “special circumstances” that make a particular murder eligible for the death penalty.

The first part of a capital trial is the guilt phase.  In the guilt phase, the jury (or judge) determines whether the defendant is guilty of the charged crimes.  The only question the jury may consider is whether the evidence proves beyond a reasonable doubt that the defendant committed the charged crimes.  The jury is not permitted to consider the possible sentence in the guilt phase.

If the defendant is found guilty of a crime that leaves him eligible for the death penalty, then there is a penalty phase of trial. 

During the penalty phase, the jury often hears additional evidence to help it make a decision about whether the death penalty should be imposed. 

Different, more relaxed, rules of evidence apply during the penalty phase.  The prosecution typically presents aggravating evidence.  Aggravating evidence is that which suggests that death is the appropriate penalty. 

The defense attorney typically presents mitigating evidence.  Mitigating evidence is that which suggests the defendant does not deserve to be sentenced to death.

Factors that a jury might consider in deciding whether to impose the death penalty include:

• The circumstances of the crime
• The defendant’s mental and emotional state at the time of the crime
• Whether the defendant was legally insane or intoxicated at the time of the crime
• Whether the defendant believed the crime to be morally justified
• The defendant’s age and level of participation in the crime
• Prior felony convictions
• Other violent crimes committed by the defendant, whether he was convicted or not
• The victim’s role or participation in the murder
• Victim impact evidence (the impact of the murder on the victim’s family and friends)
• Any other extenuating circumstances
  

In California, the only two sentencing options available at the penalty phase are death or life without the possibility of parole.  Life without the possibility of parole is often called LWOP (pronounce el-wop).  A defendant sentenced to LWOP will spend the rest of his life in prison (unless his conviction is overturned).  It is considered a true life sentence.

According to Rudd, the prosecutors and police are even worse than him.  Many of his interactions with them bear this out.  No one in the book is really a good guy. 

The story is told in the first person.  The book often feels like a braggadocio telling war stories at a bar.  At times the book feels more like a collection of short stories with the same main character rather than a novel. 

​Rudd lives and works in a fictional, unnamed City and its surrounding towns.  It seems to be somewhere in the Midwest.

​The death penalty case Rudd is trying at the beginning of the book is resolved rather quickly, and then is never mentioned again.  Some of his other cases and clients come and go throughout the rest of the book.  One of the main stories involves a Mixed Martial Arts fighter that he finances.   

There are few women characters in the book.  And those few are bitchy, one-dimensional stereotypes (including the main bitch, his lesbian ex-wife).  I guess that’s the reality of Rudd’s world.  It would’ve been easy to make one or a few of the more tangential characters female, like a detective or FBI agent, but Grisham didn’t bother. 

​At the end of the day, the book was entertaining.  It would make a good summer read.  But, thankfully, it doesn’t remotely resemble the criminal justice system that I know.

​Click the image to check it out.  (And if you haven't read "A Time to Kill," what are you waiting for?

In California, an SVP is defined as:
​
1) a person who has been convicted of certain offenses, including child molestation or rape, and

2) the person who has a diagnosed mental disorder, and

3) that mental disorder makes it likely that he or she will commit sexually violent acts in the future.

​All three of those elements must be met before someone can be designated an SVP.
​

There is a joke about why lawyers use complicated language, sometimes called legalese:
So they can charge higher fees.

There may be a little bit of truth in that, but the full answer is, well, more complicated.

One of the reasons the law is often written in complicated or hard-to-understand language is because of the way law develops.  In the United States, we use something called stare decisis.  (That's pronounced starry de-sigh-sis.)  Stare decisis means that we look at past cases to help us interpret the law today.  

This helps maintain consistency throughout time and helps lawyers and litigants predict the outcome of their own case.  Those are good goals.  But one of the downfalls of stare decisis is that words and phrases from hundreds of years ago - like stare decisis - stay with us.  

Another reason the law is so complicated is that sometimes lawyers will disagree about what a word or phrase means.  If a word or phrase or phrase can be interpreted in more than one way, more words will need to be added to make sure it is interpreted as intended.  A misinterpreted word can lead to huge unintended consequences.

A good lawyer who is writing a law or other legal document will try to think of every possible way the document could be misinterpreted in the future.  The lawyer then has to write more into the law or document to guard against these possible future misinterpretations.  As words and phrases are misinterpreted in laws and documents, over time, lawyers will include all the possible guards against all the possible misinterpretations that exist or might exist in the future.  This is how a short sentence can turn into a page-long paragraph.

A third reason the law sounds so complicated is because terms of art have developed over time.  A particular word or phrase might have a specific meaning in the law that is completely different than what it means outside the law.  

An example of this is the word "continue."  In everyday, to continue something means to keep going.  But in court, to continue something means to put it off for another day or time.  For example, a lawyer might ask to continue a hearing until the afternoon because she has a more pressing appearance scheduled in another courtroom that morning.

Or a word might not be used in everyday life, but it might have a well-known and easily understood meaning in the law.  These words and phrases are often in Latin (see "stare decisis" above).  These uses of words often provide shortcuts for lawyers, but they can make the law sound confusing and complicated to a nonlawyer.

Legal movies and television can use these words to great affect.  A memorable scene from "Legally Blonde" is a great example of this.  Elle (Reese Witherspoon) squares off against her rival in a discussion of the differences between the terms malum prohibitum (a regulatory crime) and malum in se (a dangerous crime).

Finally, another reason the law is so complicated, especially in criminal law, is because of a little thing called the Constitution.  The Due Process Clause of the Constitution requires fundamental fairness.  This means that a criminal defendant must be put on notice of possible crimes he may commit.  This, in turn, means that criminal laws cannot be vague or overbroad or they will be held unconstitutional.  Law are often written in a complicated way to try to prevent that from happening.

The Due Process requirement of fundamental fairness also means that any ambiguity in a criminal law will be interpreted in the defendant's favor.  That is called the rule of lenity (another phrase from centuries ago).

An example of the rule of lenity is found in United States v. Santos, 553 U.S. 507 (2008).  The U.S. Supreme Court discussed the possible definitions of “proceeds” in the federal money laundering statute, 18 U.S.C. § 1956.  Specifically, the Court discussed whether "proceeds" covers criminal receipts or profits.  The Court stated:

So, if Congress wanted to include both receipts and profits in its definition of proceeds, it would have to amend the law to include those specific terms.  And the law just got more complicated.

The next time you hear someone ask why the law is so complicated, you can give a lawyer's favorite answer to any legal question:  It depends.

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The movie thriller, "Double Jeopardy" gets the concept of double jeopardy completely wrong.  Here, I'll explain the basics of double jeopardy under the law and how the movie got it wrong.

The legal concept of double jeopardy comes from the Double Jeopardy Clause of the Fifth Amendment of the U.S. Constitution, which states:

The Double Jeopardy Clause prevents a criminal defendant from being tried more than once by the same sovereign for the same offense.

First, double jeopardy only applies if the defendant was either convicted (found guilty) or acquitted (found not guilty) after the first trial.

Second, it must be the same sovereign that is trying the defendant both times.  Each government entity is a separate sovereign.  The federal government is separate from the states, and each state is a separate sovereign from the others.  Also a Native American tribal government is separate from the federal government and states.

A true crime example of this was shown during the trials of the LAPD Officers who were accused of beating Rodney King.  The four officers were initially charged by the state of California (through the Los Angeles County District Attorney's Office).  They were acquitted of the charges in state court.  The acquittals sparked the L.A. Riots.  The federal government then charged the four officers with civil rights violations based on the same incident.  This was not precluded by the Double Jeopardy Clause because the California and the federal government are two separate sovereigns.

The third requirement of double jeopardy is that the crimes charged in the first and second trials must be for the same offenses.  This is determined by the same elements test.  The elements of the crimes charged in the first and second cases are compared.  If there is an element that must be proven in each crime that is different from the other, than the crimes are not considered the same, and double jeopardy does not apply.

*SPOILER ALERT
In the movie "Double Jeopardy," a married couple spend a weekend sailing.  The wife, Libby (Ashley Judd), wakes up to find blood all over herself and the boat.  Her husband, Nick, is missing.  She arrested when the coast guard spots her holding a bloody knife, which she found on the deck.

Libby is convicted of Nick's murder.  Her best friend agrees to care for her four-year-old son while Libby is in prison.  While on the phone with her son, Libby hears a door open in the background, and her son yells, "Daddy."  The phone disconnects.

Libby suspects Nick faked his death and framed her for murder.  Another inmate advises Libby that when she was paroled, she could kill Nick with impunity because she had already been convicted of his murder, and the Double Jeopardy Clause would prevent her from being charged again.  Libby does just that.  (Tommy Lee Jones plays Libby's parole officer who at first investigates her violations of parole, then helps her once he realizes her story may be true.)

Lesson number one:  Never take legal advice from a fellow prison inmate - or a movie - without first checking with a lawyer.

Libby's fellow inmate, and this movie, get the concept of double jeopardy wrong.  If someone is wrongly convicted of murder, they do not then have free license to kill that person if the person is found alive.  

Although both charged crimes are for the murder of Nick, they are two separate incidents.  The dates, facts, and evidence supporting each charge would be completely different.  Therefore, the charges are not for the same offense.  

Also, in the movie, the first framed murder occurred in Washington state.  The second murder occurred in Louisiana.  Therefore, double jeopardy would not bar the second prosecution because the two states are not the same sovereign. 

Because she was falsely convicted the first time, she could probably sue and recover some money to compensate her for her time in prison, but she would not be able to use that first conviction as a defense for her the second (valid) charges.

Check out the movie by clicking below:

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The book, "Silence of the Lambs," by Thomas Harris, was published in 1989.  The movie was released in 1991.  Both the book and movie hold up well over time.  They are just as engaging and creepy today as when they were released.

Clarice Starling (played by Jodie Foster in the movie) is an FBI trainee who is sent to meet with convicted serial killer and cannibal, the brilliant psychiatrist Hannibal Lecter (Anthony Hopkins).  The FBI is hunting a new serial killer known as Buffalo Bill, and they hope Dr. Lecter will open up to Starling and provide some insight.

Dr. Lecter does have information on Buffalo Bill, but he will not give it up before forcing Starling into a quid pro quo to get personal information from her.  Much of the story's force comes from the relationship between Starling and Dr. Lecter.  The desire to save Buffalo Bill's latest victim (who happens to be a powerful Senator's daughter) makes the situation urgent for the FBI.  But Dr. Lecter has all the time in the world.

Both the book and movie are smart and scary.  The book provides a little more detail and background.  But the parts changed or left out of the movie mostly made it better.

The movie won several Academy Awards, including all of the top five categories:  Best Picture, Best Actor for Anthony Hopkins, Best Actress for Jodie Foster, Best Director for Jonathan Demme, and Best Adapted Screenplay.

This is one of my top favorite movies of all time.  Check out the movie and book here:

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Although it is an older movie, "Presumed Innocent," starring Harrison Ford, is educational and can be used to teach many legal lessons.  It can be effectively used as part of a legal ethics or criminal law and procedure class. 

The basic premise of the movie is that Harrison Ford's character, Rusty Sabich, is an assistant district attorney who is accused of murdering his colleague and lover.  His boss, the elected district attorney, played by Brian Dennehy, assigns Rusty to handle the investigation into Carolyn Polhemus' death (played by Greta Scacchi).  Along the way, he hides his relationship with her, destroys evidence, learns that the boss was also sleeping with her, and winds up accused of murder. 

Right away, there is a conflict of interest.  Probably the District Attorney's Office handling the investigation at all would be a conflict, especially in a smaller office like the one depicted in the movie.  Normally, such a case would be handled by the state Attorney General's Office.  Rusty has an even greater conflict than Carolyn's other colleagues because he had an illicit affair with her.  Rusty does not disclose his affair to his boss (even when the boss confides his own affair to Rusty), which creates a greater appearance of impropriety.

The movie does a good job of showing the different roles and obligations of prosecutors and defense attorneys.  The main character is a prosecutor who is charged with a crime.  The movie shows his interactions with his hired defense attorney, played by Raul Julia.  It shows advice given by the defense attorney to his client, like pleading the Fifth in the grand jury, even though his client may not want to take it.  It also explains why he should do so even though it will make him look guilty - you don't want to give the prosecution pre-trial statements to use against you.  The movie also shows strategic decisions made by the defense attorney along the way.

There is a part in the movie where the prosecutor wants to put in evidence statements that Rusty made to him.  The judge correctly rules that the the prosecutor will not be permitted to testify in the case unless he steps down as prosecutor and lets someone else take over the case.  This points to a key mistake that many books, TV shows, and movies make, which is having the attorney investigate crimes and question witnesses alone.  That's what investigators are for.  (Learn more about this in my free ebook revealing the Top 7 Mistakes Made by Writers of Crime, Mystery and Legal Drama.)

"Presumed Innocent" also shows the practical reality that sometimes things outside the courtroom can make all the difference in the outcome of a case.  (SPOILER ALERT)  In that case it was the defense attorney's knowledge of the trial judge's past unethical behavior that gave the defense an edge. 

The movie can be used as a good example of how to show probable cause to get a search warrant.  In the movie, the police had Rusty's fingerprints on a glass in Carolyn's apartment, phone records showed many calls between Rusty and Carolyn, including one call the night of the murder, Rusty's blood type matched semen found inside the victim (the book and movie were pre-DNA), and unknown carpet fibers were found in the victim's apartment. 

NOTE, however, that the police in the movie choose not to search for a murder weapon.  In reality, the police will always search for a murder weapon at the home of their primary suspect.  (The reason this is done in the movie is because a twist at the end revolves around discovery of the murder weapon.)

Finally, there are two incidents in the movie where Rusty destroys evidence.  That is obviously a big no-no -- for an attorney or anyone else. 

This is one of the few examples of a movie that gets most of the legal stuff right.  (It would probably be my second choice of an accurate legal film after My Cousin Vinny.)  It is also a compelling story that stands up to the test of time.  The book upon which the movie is based, also called "Presumed Innocent" by Scott Turrow, is excellent as well.  (Click below to check out the movies or book.)

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Gillian Flynn is the author of the popular novel "Gone Girl," which I previously reviewed.  As much as I liked Gone Girl, Dark Places was even better.

The main character, Libby Day, is a woman who was just a little girl when her entire family was slaughtered in the middle of the night at home.  Her teenage brother, Ben Day, was tried and convicted of their murders, and she has not seen him since.  Her testimony helped put him away, and she believed he was guilty.

Libby is approached by someone in a murder club, a group of people who discuss and sometimes try to solve infamous crimes.  The club believes Ben is innocent and blames Libby for unjustly putting him behind bars.  Based on her interactions with the club, Libby goes on a kind of quest to learn the truth about her family's murders.

This was a fascinating look at a unique and sympathetic situation.  Libby Day is nothing like I would have imagined a mass murder survivor to be.  Gillian Flynn has a way of making even the most insane situations absolutely realistic and shocking.  She is also great at making an unlikeable person into a character that you can't stop reading about. 

She also has a taste for the disgusting.  What might have been a sentence about someone throwing up is instead a two-paragraph description of the color, smell, consistency, and more of the puke.  Her details and phrasing are memorable and impressive, if sometimes off-putting.  But that is life.

I have now read all three of Gillian Flynn's novels, including Gone Girl and Sharp Objects.  "Dark Places" is by far my favorite.  A dark and witty read that you won't want to put down.

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