Jury's 'awesome responsibility'

Petaluma Argus-Courier
Weekend edition July 16-18, 1996

By Rebecca Rosen Lum
Argus-Courier Staff

The jury in the Richard Allen Davis trial have met two children -- equally capable, at some point, of sweetness and sensitivity.
Last week, it was a vibrant girl, who roller skated through her grandparents' house, played piano-violin duets with her grandfather, roughhoused with the family dog and played baseball with her father.
This week, they heard about a boy so tenderhearted he didn't even want to see chickens hurt. They also learned of the abuse, terror and rejection he was subjected to by his parents.
That boy was Davis, now 42. Prosecutors say he abducted that vibrant girl and subjected her to an evening of terror, ending in her death Oct. 1, 1993.
According to one legal expert, "an awesome responsibility" faces the jury in weighing the circumstances of both life and loss in the penalty phase of the trial.
The six men and sic women who convicted Davis June 18 of the murder of Polly Klaas must now decide whether he will spend the rest of his life in prison or perish by lethal injection.
"This has to stay with them the rest of their lives," said Barry Helft, defense attorney and former director of capital cases for the state public defender's office.
And, according to veteran criminal lawyer Mike Adelson, "There are no guidelines other than, if the aggravating circumstances outweigh the mitigating circumstances, they shall find death. If the opposite is true, they shall find life."
That the jury took several days to return guilty verdicts when Davis' own lawyer conceded his guilt in the murder indicates they may take equal care during the penalty deliberations.
Ascertaining guilt was the easy part, experts say, despite the barrage of unbearably sad and sometimes gruesome testimony that preceded their deliberations.
"During the guilt phase of a trial, jurors must essentially ask, 'Are all the correct boxes checked?'" said Hastings School of Law professor Terry Diggs. "During the penalty phase, the question is, 'Do we want to kill this human being?' The kind of inquiry we're supposed to make in a capital case is to take a secondary step and look at the hard questions."
If the jury's sentiments reflect those of the public, they may be singularly unimpressed by the grim facts of Davis' early life.
"There's been a lot of coverage about the so-called abuse excuse," Diggs said. "There's been a real tendency in American culture lately to distance ourselves from psychological and psychiatric defenses."
But it is the obligation of defense attorneys during this phase of the trial to present "the crime coupled with the life history, so the jury can understand from whence a person came," said Helft.
In other words, for the defense to succeed, the jury does not need to learn to like Davis -- an admittedly tall order.
Yet, defense lawyers must make the jury understand why Davis is there to begin with, Helft said.
Witnesses like Polly's father, Marc Klaas, created an almost palpable image of a lively, warm girl. He made equally vivid the unmendable tear her death created in his own life.
Klaas is "clearly capable of articulating his pain," Helft said. "But Richard Allen Davis can't tell is defense lawyer why he is the way he is.
"Yale- and Harvard-educated people don't stand trial," he said. "The Richard Allen Davises of the world stand trial. You want the jury to understand the inarticulate environment he came from."
Klaas family members and supporters have little truck for comments that allude to a more complex Richard Allen Davis. They sometimes roll their eyes or whisper with obvious exasperation as defense attorneys Barry Collins and Lorena Chandler question witnesses or present arguments.
"They only thing one can actually do is try to address that -- you can't try to pretend it's not happening," said Diggs, a former Alameda deputy public defender. "Put it into the total presentation. The thing society has planned for us is the examination of more, rather than less. A key part of the attorney's function is to assemble all the parts of this complex picture -- and deal with every issue from within that context.
"All you are trying to do is get the jury to stand back and look at the whole picture," she said.