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.

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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Gone Girl was an exciting and fast read. 

The basic premise of the book is that a woman goes missing, and her husband is suspected of murdering her. 

There are twists - big and small - throughout the book.  It keeps you guessing to the end.  I really can't say too much about the story because I don't want to give anything away.  It's best to read this book without knowing too much because part of the enjoyment in reading it came from the unexpected turns the story and characters take.

The narrator alternates every chapter, back and forth from the point-of-view of the husband and the wife.  The book is like watching a good Dateline episode.  But it's even better because you get insight into the psyche of both the suspect and the victim.

Although none of the characters are very likeable, the writing is crisp and clever.  It was hard to put down. 

I would highly recommend Gone Girl to anyone who enjoys murder mysteries.  (Get the book by clicking the photo or link above or below.)

Update: I read and reviewed one of Gillian Flynn's other novels, Dark Places, which I liked even better than Gone Girl.  I have also read her first novel, Sharp Objects, which I will review soon.

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The American Bar Association released a list of what its panel of judges has determined to be the 25 Greatest Law Novels Ever.  Here are a few of my favorites that also made their list:

To Kill A Mockingbrid by Harper Lee is one of my favorite all-time books - law or not.  And I'm certainly not alone.  Harper Lee won the Pulitzer Prize for this novel, and Gregory Peck won an Oscar for his protrayal of Atticus Finch in the movie version.  Atticus defends a black man accused of raping a white woman in depression-era Alabama.  This story has themes of race, class, and justice, but it is told through the eyes of a child.  If you haven't read it since high school (or maybe never did), it's worth another look. 

Crime and Punishment by Fyodor Dostoyevsky is an fascinating psychological study in guilt.  The main character's increasing paranoia after committing murder is something that has stayed with me for years.

A Time to Kill by John Grisham is my favorite Grisham book.  This was his first book.  It is based on a real-life case.  The book is a story of race and revenge in the south with great characters.  The movie (starring Matthew McConaughey, Sandra Bullock, and Samuel L. Jackson is also excellent.

The Firm by John Grisham is not my favorite Grisham book (that award goes to A Time to Kill), but it's an exciting read.  A top graduate from Harvard Law School, Mitch McDeere is recruited to a high-paying job with great benefits.  He soon discovers that his new firm is a cover-up for serious criminal activity, and that his life and career are on the line.  The movie starring Tom Cruise is a faithful rendition of the book.

Presumed Innocent by Scott Turow is about a prosecutor accused of murdering his colleague/mistress.  This was Turow's first novel, and it's filled with political intrigue and legal maneuvering.  The movie starring Harrison Ford is a great rendition of the book.

The Stranger by Albert Camus revolves around the murder trial of Meursault. Meursault's lack of emotion is interpreted as a lack of remorse, and he is condemned to the guillotine.  But facing death, he finds himself oddly comforted by the simple fact of his own life.

And here are a few on my To-Read List:

Anatomy of a Murder by Robert Traver is based on a real life case.  A man kills his wife's rapist and claims the insanity defense at trial.  Robert Traver was the pen name of a Michigan Supreme Court Justice, John D. Voelker.  I've used the movie (starring James Stewart and directed by Otto Preminger) in my criminal law and procedure classes as a tool to teach the insanity defense.

Native Son by Richard Wright is also based on a true story.  It follows the life of Bigger Thomas, a young Chicago black man whose discomfort with whites drives him deeper and deeper into trouble for reasons he cannot seem to explain, and results in him being condemned to death for two murders.

And Honorable Mention goes to:

In Cold Blood by Truman Capote is a nonfiction true crime book written in the style of a novel.  It was one of the first to be written this way, and it remains one of the best.  For a great behid-the-scenes look at both this book and To Kill a Mockingbird (above), check out the movie Capote.   Philip Seymour Hoffman won an Oscar for his prtrayal of the author.

Do you agree or disagree with these choices?  Let me know!

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"Death in the City of Light" is a true crime book by David King about a serial killer who murdered dozens of people in Nazi-occupied Paris, France during World War II. 

The crimes committed by the accused serial killer and physician, Dr. Marcel Petiot, were truly horrible.  In addition to being gruesome, his crimes targeted some of the most vulnerable people during World War II - those who wanted to escape the Gestapo. 

Dr. Petiot was seen by those who knew him alternately as a charming humanitarian or a creep.  Dr. Petiot made a reputation for himself by providing free services to the poor.  He was also known to service drug users and was investigated more than once for improperly proscribing medication to addicts.

Petiot effectively used the Nazi occupation of Paris and the French Resistance movement to recruit new victims, prevent too many questions from being asked, and cover his crimes.  Once he is discovered and captured, the central question of his trial becomes whether his murders were committed for the Gestapo, the Resistance, or himself.

The book loses a lot of steam when the trial starts about halfway through.  Normally I'm fascinated by how a foreign country's criminal justice system and trial process compares to the United States, but this one got too bogged down in details.  Also, the author made a point of focusing on the defendant's "witty" remarks in court and the trial audience's delight in him, which was hard to take after learning of all the disgusting things he had done. 

More interesting were some of the procedures used in the French criminal court which were very different from a U.S. criminal trial.  For example, the first part of the trial was basically dedicated to an interrogation of the defendant by the trial judge and lawyers.  By contrast, in the U.S., we have the Fifth Amendment, which protects criminal defendants from ever having to speak in a criminal trial and even prevents the lawyers from commenting on his failure to testify.

Also, several of the victims in the French criminal trial were represented by civil attorneys who actively participated in the trial.  They questioned witnesses and presented evidence.  In the U.S. court system, criminal and civil trials are completely separate.

One of the things I was most struck by was the apparent lack of order in questioning and argument during the French trial.  The defendant and lawyers would speak up, question witnesses, and make arguments seemingly without structure or order.  If this is really the way of a French criminal trial, it is hard to imagine how anything could get accomplished with such a system.  Especially with so many lawyers involved and given lawyers' love of hearing themselves talk!

As far as foreign true crime serial killer books go, I preferred "The Monster of Florence" by Douglas Preston.

Check out my review of "The Monster of Florence" here.

Overall, however, the story underlying "Death in the City of Light" is simply too disturbing and intriguing to ignore. 

(Click the images or links above to check out the books for yourself.)

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This true crime book describes a murder of a 3 year old boy in mid-1800s England.  The young victim of the Road Hill murder's throat was slit, and his body was dumped down an outdoor privy.  The crime occured in the middle of the night, and everyone in the household was a suspect. 

The crime captivated the public's imagination, and everyone had a theory about who did it.  The concept of the detective was new, and detective stories were popular throughout the country. 

The methods of investigation used were rudimentary and seriously flawed by today's standards.  It is hard to believe any crimes were solved in those days.

London's foremost detective, Mr. Whicher, was brought in to review the evidence after the local police could not solve the crime.  He pointed the finger at what seemed an unlikely suspect, and was denounced when the evidence did not prove guilt.

The crime and ensuing investigation are described it in a way that leave you guessing who the murderer is. 

The book spends far too much time discussing fictional detective stories of the time.  It is clear the author did a lot of research, but most of it does not enhance the underlying story here of the murder and detective.  The references to other stories are often distracting and uninteresting if you have not read the books to which she refers.

Although the book gets bogged down by details and sidetracked by side stories, the underlying crime story is a good one.  If you have the patience to wade through the muck, the root is a true crime story worth reading.

(Click below to check out the book.)

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