The lessons of Capturing the Friedmans: Moral panic, institutional denial and due process

Law, Culture and the Humanities

Volumn 3, Issue 2, 2007, Pages 293-319

  Bandes, Susan ^a  

^a DEPAUL UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 70450174141     PISSN: 17438721     EISSN: 17439752     Source Type: Journal    
DOI: 10.1177/1743872107076384     Document Type: Article

References (166)

1. In California alone, in high profile investigations in Bakersfield and Manhattan Beach, "hundreds of. children were naming ministers, reporters, soccer coaches, aerobics instructors, grade school teachers and babysitters as abusers.".
2. Debbie Nathan and Michael Snedeker, Satan's Silence: Ritual Abuse and the Making of a Modern Witch Hunt (Basic Books, 1995). Investigations in Massachusetts, North Carolina, Florida and elsewhere led to scores of additional accusations.
3. Dorothy Rabinowitz, No Crueler Tyrannies: Accusation, False Witness, and Other Terrors of Our Times (New York: Free Press 2003).
4. See e.g. Maggie Jones, "Who Was Abused?" New York Times Magazine 77-81, September 19, 2004.
5. Erich Goode and Nachman Ben-Yehuda, "Moral Panics: Culture, Politics, and Social Construction," 20 Annual Review of Sociology 149, 156-159 (1994). I will consider the concept of moral panic in more detail shortly.
6. Magnolia Pictures 2003, Home Box Office Inc.
7. Several critics argue that Jarecki's belief that injustice had been done was obvious. See e.g. Sharon Waxman, "Victims Say Film on Molesters Distorts Facts," New York Times, February 24, 2003 (arguing that the film's selective use of evidence created undue sympathy for the Friedmans).
8. "'Capturing the Friedmans': Art, Truth, and Marketing," April 20, 2004 (www.richardwebster.net) (arguing that the film only pretended to be evenhanded, and actually conveyed a belief that the Friedmans were railroaded).
9. Harvey Silvergate, "Picture of Injustice," The Boston Phoenix, September 15, 2004 (arguing that Jarecki's "studied ambiguity" was morally problematic in light of his apparent conviction that the Friedmans were innocent). See also infra note 64 (discussing Jarecki's own views, as expressed to Charlie Rose).
10. Rashomon, (Daiei Motion Picture Co., 1950; RKO Radio Pictures, Inc., 1952).
11. See Orit Kamir, "Judgment by Film: Socio-Legal Functions of Rashomon," 12 Yale J.L. & Humanities 39, 39 (2000) ("Rashomon has come to embody a general cultural notion of the relativity of truth.")
12. The Thin Blue Line (Third Floor Prods., 1988).
13. The film, an expose of the process which led to the conviction of Randall Dale Adams for murder, "triggered an official inquiry into the case that culminated in Adams' release from prison." Richard K. Sherwin, "Law Frames: Historical Truth and Narrative Necessity in a Criminal Case," 47 Stan. L. Rev. 39, 46 (1994).
14. As I will discuss later, the film bears a closer resemblance to a Thin Blue Line-style expose than is immediately apparent.
15. Frank Kermode, The Sense of an Ending 127 (1967) (Oxford: Oxford University Press, 2nd ed. (2003)) (discussing closure as an essential element of storytelling).
16. As Robert Cover observed, "every narrative is insistent in its demand for its prescriptive point, its moral." Robert Cover, "The Supreme Court 1982 Term, Foreword: Nomos and Narrative," 97 Harv. L. Rev. 4, 5 (1983).
17. See generally Patricia Ewick and Susan Silbey, The Common Place of Law: Stories from Everyday Life (Chicago. University of Chicago Press, 1998) (discussing grand narratives of justice).
18. Jarecki hints at this possibility in the film, by giving significant screen time to Debbie Nathan, a freelance journalist who has devoted many years to exposing the injustices of the day care sex abuse cases.
19. See e.g. Nathan supra note 1.
20. Nathan, in the film, explicitly places the Friedman prosecutions in the context of the day care panics of the 1980's, and describes the Friedman investigation as a moral panic.
21. Much of the film focuses on the painful dynamics of the Friedman family, and although these dynamics both exacerbate and are exacerbated by Arnold and Jesse's legal problems, they are not the focus of this discussion.
22. This is not to suggest that role entirely determines perspective; the film depicts varying perspectives among investigators, among victims, and, most powerfully, among members of the defendants' family.
23. Patricia Ewick and Susan S. Silbey, "Subversive Stories and Hegemonic Tales: Toward a Sociology of Narrative," 29 L & Soc'y Rev. 197, 206-208 (1995).
24. Susan Bandes, "Empathy, Narrative and Victim Impact Statements," 63 U. Chi. L. Rev. 361, 382-88 (1996) (discussing counter-narratives that violate the rules of storytelling in order to unsettle conventional assumptions).
25. Susan Bandes, "Patterns of Injustice: Police Brutality in the Courts," 47 Buff. L. Rev. 1275, 1328 (1999).
26. See also Susan Bandes, "Not Enough Blame to Go Around: Reflections on Requiring Purposeful Government Misconduct," 68 Brooklyn L. Rev. 1195 (2003).
27. One of the acknowledged classics in this field is Stuart Hall, Chas Critcher, Tony Jefferson, John Clarke and Brian Roberts, Policing the Crisis: Mugging, the State, and Law and Order (Teaneck: Holmes & Meier Publishers 1978). Other highly respected sociological works on moral panic in general, and the child sexual abuse panic of the 1980's in particular, are cited throughout this article.
28. In my article "Patterns of Injustice: Police Brutality in the Courts," supra note 18, I explore in detail the cultural assumptions that undergird judicial tendencies to discern a pattern among incidents in some situations but not in others, and indeed to disaggregate incidents that are arguably connected in some circumstances.
29. Stanley Cohen, Folk Devils and Moral Panics (1972) (Oxford: Routledge, 30th anniversary edn. (2002)).
30. Id at 9.
31. Policing the Crisis, supra note 19.
32. Michael Welch, Eric A. Price and Nana Yankey, "Moral Panic Over Youth Violence: Wilding and the Manufacture of Menace in the Media," 34 Youth & Society 3-30 (September 2002).
33. See e.g. Beatrix Campbell, Unofficial Secrets: Child Sexual Abuse-The Cleveland Case (London: Virago Press 1988).
34. Nathan, supra note 1.
35. Rabinowitz, supra note 2.
36. Policing the Crisis, supra note 19 at Introduction vii.
37. Id at Introduction viii.
38. There are varying views on how the panics are generated, and for what purposes. Cohen saw them as the product of societal or cultural forces; Goode and Ben-Yehuda viewed them as engineered by the deliberate acts of ruling elites; whereas Hall et al tended to agree that they are generated by elites, but did not impute cynical motives to those elites.
39. See Cohen, supra note 21 (introduction at xxiii).
40. Goode and Ben-Yehuda, supra note 4 at 127.
41. Policing the Crisis, supra note 19 at 220.
42. Historian Arnold Hunt also discusses proponents of a grassroots theory, who believe that moral panics are in fact accurate reflections of the conditions in which people live, and thus ought not to be labeled panics at all. Arnold Hunt, "'Moral Panic' and Moral Language in the Media," 48 British Journal of Sociology 629, 636-637 (1997) (discussing grassroots theory).
43. Not that hindsight guarantees clarity. The causes of the Salem Witch Trials, for example, are still being debated. See e.g. Frances Hill, A Delusion of Satan: The Full Story of the Salem Witch Trials (New York: Doubleday 1995) (arguing that the causes included economic woes and a brutally cold winter).
44. Mary Beth Norton, In the Devil's Snare: The Salem Witchcraft Crisis of 1692 (New York: Knopf, 2002) (arguing that the trials must be placed in a religious, political and military context, and particularly in the context of the Indian Wars and the religious interpretation of those wars).
45. See e.g. The Crimes Against Children and Sexually Violent Offender Registration Program, 42 U.S. C. A. 14071 (2003) (popularly known as Megan's Law; passed in reaction to a high profile child abduction).
46. and Public Law 109-3 (2005) (creating a new source of federal jurisdiction to enable Terry Schiavo's parents to challenge the decision to remove her from life support)
47. See also the USA Patriot Act, PL 107-56 (2001). As an editorial in the New York Times noted, "The Patriot Act was passed in haste, in the angstfilled days after the September 11th attacks, with some lawmakers candidly admitting they never read the details." The editorial notes that rather than allow its more controversial provisions to expire, lawmakers "seem bent on making it worse." "Patriot Act Redux, and in the Dark," New York Times at A22, June 1, 2005.
48. But see Angela McRobbie and Sarah L. Thornton, "Rethinking 'Moral Panic' for Multi- Mediated Social Worlds," 46 British Journal of Sociology 559, 566 (1995).
49. The authors argue that by the 1990's, interest groups and lobbies had mobilized to intervene in moral panics as they were unfolding, seeking to "respond instantly to the media demonization of the group they represent, and to provide information and analysis designed to counter this representation".
50. Policing the Crisis, supra note 19 at 222 (emphasis in the original).
51. Hunt, supra note 28, quoting the preface to Goode and Ben-Yehuda, Moral Panics: The Social Construction of Deviance (Oxford: Blackwell, 1994).
52. quoting the preface to Goode and Ben-Yehuda, Moral Panics: The Social Construction of Deviance (Oxford: Blackwell, 1994).
53. McRobbie and Thornton, supra note 31 at 563.
54. expressing this opinion and noting the trend to locate Policing the Crisis within a cultural studies or neo-Marxist perspective.
55. As Arnold Hunt notes, Stanley Cohen remains neutral on the policy implications of the phenomenon he identifies, whereas the authors of Policing the Crisis "incorporate in their definition of a moral panic the notion of an irrational or unjustified response.".
56. Hunt, supra note 28 at 634.
57. See Religioustolerance.org/clergy (last visited September 15, 2004).
58. Benjamin Shepard, "In Search of a Winning Script: Panic vs. Institutional Denial," in Sexualities (Sage Publications, 2003).
59. See e.g. Alexander Cockburn, "Back to Salem," The Nation at 12, March 7, 2005 (likening child sexual abuse prosecution of defrocked priest Father Paul Shanley, which was based largely on recovered memory testimony, to a witch hunt).
60. Bandes, "Patterns of Injustice," supra note 18.
61. Policing the Crisis, supra note 19 at 133.
62. Nathan and Snedeker, supra note 1 at 1.
63. citing Gail S. Goodman et al., Characteristics and Sources of Allegations of Ritualistic Child Abuse (Washington D.C.: National Center on Child Abuse and Neglect, 1994) reporting federal governmental study determining that reports of satanic conspiracies and organized incursions into day care were unfounded.
64. Mary de Young, "The Devil Goes to Day Care: McMartin and the Making of a Moral Panic," 20 Journal of American Culture 19 (1997).
65. John Johnson, "Kids Don't Lie," Los Angeles Times 16, August 10, 2003.
66. Margaret Talbot, "Against Innocence," The New Republic 38, March 15, 1999 (suggesting that though the data are subject to varying interpretations, it is likely that the incidence of child abuse decreased in the 1980's).
67. See e.g. deYoung, supra note 41 at 1-2.
68. Nathan & Snedeker, supra note 1 at 4.
69. Hunt, supra note 28 at 635.
70. Susan J. Sachsenmaier, "Investigating Child Sexual Abuse Allegations: Do Experts Agree on Anything?" www.aaets.org/arts (The American Academy of Experts in Traumatic Stress homepage; last visited September 15, 2004.)
71. See e.g. John O. Beahrs, John J. Cannel and Thomas G. Gutheil, "Delayed Traumatic Recall in Adults: A Synthesis with Legal, Clinical, and Forensic Recommendations", 24 Bull Am Acad Psychiatry Law 45 (1996) (noting that the topic of delayed recall remains highly polarized both in forensic psychiatry and in society, and suggesting that polarization arises not only from competing values but from definitional confusions).
72. Silvergate, supra note 6.
73. The screening took place in Great Neck, New York. Scenes from the screening appear on Disc Two of the Capturing the Friedmans dvd.
74. Capturing the Friedmans Disc 2. See also Affidavit of Andrew Jarecki in support of Jesse Friedman's motion to vacate conviction in the case of The People of New York v. Jesse Friedman, Indictments Nos. 67104, 67430 and 68783, County Court of the State of New York, Nassau County, January 5, 2004.
75. Capturing the Friedmans Disc 1.
76. See e.g. affidavits filed by several of the interviewees and their parents, including Richard Tilker, Brian Tilker, Ralph Georgalis, in the aftermath of the film, as well as the transcript of an interview surreptitiously recorded by one child's mother during the initial investigation. Capturing the Friedmans Disc 2.
77. A similar description emerges when a legal advisor to the film interviews one of the detectives, Detective Jones, during the making of the film. Detective Jones recounted the following: One child was interviewed fifteen times, in sessions lasting as long as four hours. He repeatedly denied being abused. The detective explained why she kept going back: "The boy would let us sit with him in his bedroom for hours, and he'd bring up every topic except sexual abuse. We played games with him, he showed us his computer, he'd do anything to avoid the subject. For a long time he had nothing to say, but we knew. On one occasion the boy jumped up and down, screaming "I have nothing to tell you! Nothing happened!' But by then we already knew, so we kept coming back after that until he told us. On the fifteenth visit, the detectives told the boy's mother that they were going to stay "as long as it takes, that we were not going to leave until he told us. We were prepared to stay all night if need be.' The boy finally stated that he had been abused. Asked why it took the child fifteen interviews to make the accusation, the detective explained that he "had suffered tremendous trauma and had kept it deep inside. I drew it out again,' she said. After that visit, the detectives did not return. Affidavit of David Kuhn, id.
78. See Silvergate, supra note 6, critiquing the plea arrangements.
79. Silvergate, id.
80. See e.g. Silvergate, id.
81. Susan Davis, "Questions the Documentary Never Asks: Framing the Friedmans," Counterpunch, November 29, 2003
82. Waxman, supra note 6.
83. See Law on the Screen (Sarat, Douglas and Umphrey, eds. Palo Alto: Stanford University Press (2005)), introduction at 5 (discussing the 'doubling up, or thickening, of narrative space that arises from depiction of courtroom proceedings on film).
84. Jennifer L. Mnookin, "Reproducing a Trial" at 157, in Law on the Screen (Sarat, Douglas and Umphrey, eds, 2005).
85. Law on the Screen, supra note 58 at 14 (explaining that viewers of films about legal trials are "jurified" on a number of different levels.)
86. Mnookin, supra note 59 at 158.
87. Linda Williams, "Mirrors without Memories: Truth, History, and the New Documentary," 46 Film Quarterly 9, 14 (1993).
88. Peter Brooks, Troubling Confessions: Speaking Guilt in Law and Literature at 9 (Chicago. University of Chicago Press, 2000).
89. Jesse Friedman asserts in his Motion to Vacate Conviction that the film gave him some hope that he might overturn his conviction, and that it also provided access to former child witnesses who would testify on his behalf, as well as to new exculpatory evidence.
90. Motion to Vacate Conviction, supra note 47.
91. Capturing the Friedmans Disc two.
92. On Disc 2, the director declares, in an interview with Charlie Rose, that he believes in Jesse Friedman's innocence. He reveals a more complicated attitude toward Arnold, suggesting (in reference to Arnold's admitted acts of pedophilia) that he had been convicted of the "wrong felonies." However, he made clear his opinion that the case had been poorly handled, noting that if it had been a shoplifting case, it would have been thrown out "because the police work was so bad".
93. Johnson, "Kids Don't Lie," supra note 39.
94. Dr. Roland Summit, "The Child Sexual Abuse Accommodation Syndrome," 7 Child Abuse and Neglect, 1983.
95. Rabinowitz, supra note 2 at 14.
96. Detectives explained their failure to do so as based on a desire to spare the children the trauma of a physical exam, as Detective Garasso explained in Capturing the Friedmans (Disc two).
97. See also www.leadershipcouncil.org (last visited May 29, 2005), a website of psychologists specializing in child molestation research, which cites approvingly the decision not to subject the children to physical exams in the Friedman investigation.
98. For example, Detective Garasso commented in the film that "the most overwhelming thing was the child pornography," and confidently declared that police had found stacks of pornography in full view throughout the house; though in fact they had found only one such stack, hidden behind the living room piano. This memory comported with the original theory of the case; that the Friedmans were working with a child pornography ring.
99. James S. Liebman, "The Overproduction of Death," 100 Columbia L Rev 2030, 2082-97 (2000).
100. Id at 2094 n160.
101. Ken Armstrong & Maurice Possley, "Break Rules, Be Promoted," Chicago Tribune, January 14, 1999.
102. Scott Turow, Ultimate Punishment: A Lawyer's Reflections on Dealing with the Death Penalty at 34 (New York: Farrar, Straus & Giroux (2003)).
103. Liebman, supra note 73 at 2078 n 137.
104. Myron W. Orfield, Jr., "Deterrence, Perjury and the Heater Factor: An Exclusionary Rule in the Chicago Criminal Courts," 63 U. Colo. L. Rev. 75 (1992).
105. Oliver Goodenough and Kristin Prehn, "A Neuroscientific Approach to Normative Judgment in Law and Justice, Phil. Trans. Royal Society London 1709, 1719 (2004).
106. The Passions of Law, Introduction (Susan Bandes ed. (New York: New York University Press (2000))
107. Anthony R. Damasio, Descartes' Error: Emotion, Reason, and the Human Brain, Ch. 6 (Biological Regulation and Survival, pp 114-126 (Harper Perennial (1995)).
108. In the film, Arnold admits to having inappropriate sexual contact with two young boys unrelated to the computer class during a summer vacation. Neither ever came forward. Debbie Nathan quotes a former computer student who recalled that during class Arnold "used to give boys furtive pats on their clothed legs and butts," but that the kids shrugged it off as a mere nuisance.
109. Debbie Nathan, "Complex Persecution," The Village Voice at 30, 2003.
110. Davis, supra note 56.
111. Good and Ben-Yehuda, supra note 4 at 157.
112. Policing the Crisis, supra note 19 at 133.
113. In the film, Jesse's attorney Peter Panero recounts a conversation while Arnold was in prison, in which Arnold asked to move away from a father with a small boy on his lap, because their interaction was exciting him sexually. Panero is emphatic about how disgusted he felt at this revelation.
114. William Miller, The Anatomy of Disgust at 194-95 (Cambridge: Harvard University Press, 1997).
115. Martha Nussbaum, "Secret Sewers of Vice" at 51.
116. in The Passions of Law, supra note 41.
117. Dan Kahan, "The Progressive Appropriation of Disgust," in The Passions of Law, id.
118. Miller, supra note 85 at 202-03.
119. Rabinowitz, supra note 2 at 18.
120. Id at 229.
121. Janet Reno, for example, "rode to prominence in Florida as Miami Dade County state attorney on these cases." Rocky Mountain News, June 19, 2003.
122. See also Nathan and Snedeker, supra note 1 at 5.
123. The John Stoll prosecution was brought by a District Attorney who won office after his opponent was enveloped in scandal over his lenient treatment of a child molester. Jones, "Who Was Abused?," supra note 3.
124. A 1992 article in the National Law Journal approvingly discusses the "pot of gold at the end of the rainbow" for Fells Acre prosecutor Laurence Hardoon, who entered private practice to prosecute civil child abuse lawsuits, and "settled cases aggregating more than $1 million for his clients in his first year".
125. Randall Samborn, "Prosecutors Go to Boot Camp," National Law Journal 1-2, September 14, 1992.
126. See also Don J. DeBenedictis, "McMartin Preschool's Lessons," 76 ABA Journal 28-29 (April 1990) (discussing the ole of prosecutorial ambition in the McMartin case).
127. Jay Mathews, "Ex McMartin Defendant Sues Local Governments, Media," The Washington Post A3, January 20, 1990 (same).
128. Dorothy Rabinowitz, quoted in Vincent Caroll, "The Tragedy of a Modern-Day Witch Hunt," Rocky Mountain News 40A, June 19, 2003.
129. Neil Vidmar, "Generic Prejudice and the Presumption of Guilt in Sex Abuse Trials," 21 Law and Human Behavior 5, 6 (1997).
130. Joseph Nadler and Mary R. Rose, "Victim Impact Testimony and the Psychology of Punishment," 88 Cornell L. Rev. 419, 443 (2003).
131. Nathan and Snedeker assert that prosecutors habitually hid exculpatory evidence from defense lawyers and sealed records from the press "in the name of protecting the child victims".
132. Nathan and Snedeker, supra note 1 at 6.
133. Nathan and Snedeker assert that once it became obvious that videotaped interviews showing children denying abuse led to not-guilty verdicts, "prosecutors began advising investigators not to keep tapes or detailed notes of their work".
134. Nathan and Snedeker, id at 6.
135. See for example the discussion by Rabinowitz of the Snowden trial in Florida, in which a woman "with no credentials as a child psychologist but a reputation as a child advocate and a doctorate in speech, had been permitted to present herself to the jury as an expert in child development," whereas a specialist in research on the diagnosis of sexually transmitted diseases was not permitted to testify because he was "not an expert in the diagnosis of sexually transmitted diseases in children," despite the fact that "this medical specialty does not exist".
136. Rabinowitz, supra note 2 at 58.
137. Although as Nathan and Snedeker point out, the day care abuse prosecutions introduced several non-traditional types of evidence, including "videotaped interviews, closed circuit television testimony, hearsay accounts of abuse by adults speaking for children in court, and expert testimony about children's play with dolls, their drawings, and sexual abuse behavioral syndromes".
138. Nathan and Snedeker supra note 1 at 6.
139. One shocking claim that came out in the film concerned the use of Arnold's "closeout statement," a statement he made as part of his guilty plea in which he confessed to molesting numerous students so that the police would not rearrest him and charge him with additional acts of abuse. The closeout statement was a confidential document which, according to Jesse's affidavit, police nevertheless read to the potential witnesses for Jesse in his pending trial in order to discourage them from testifying for him. Indeed, Jesse soon found himself with no witnesses to present.
140. See affidavit of Jesse Friedman, motion to vacate, supra note 47, and Capturing the Friedmans Disc 2.
141. Affidavit of Andrew Jarecki, motion to vacate, id.
142. But see the leadership council website, supra note 71, taking issue with what it terms the myths propounded by the film, including the myth that children will exaggerate stories of abuse, and the myth that children will necessarily report abuse to their parents.
143. See Sasha Abramsky, "Memory and Manipulation," LA Weekly 32, August 20, 2004 (discussing the work of Elizabeth Loftus).
144. Goode and Ben-Yehuda, supra note 4 at 158.
145. Some sociologists use the label rather flexibly. Goode and Ben-Yehuda, for example, seem willing to call the fear of nuclear contamination a moral panic, though it does not meet the criteria of volatility or the presence of folk devils, solely because it meets the criterion of disjunction between likelihood of harm and public concern with the threat. Id at 162. At such points the concept of moral panic begins to seem elastic to the point of amorphousness.
146. McRobbie and Thornton, supra note 31 at 564 (critiquing the concept of moral panic as a "poor vehicle for addressing policies and practices that are endemic, rather than sudden, unpleasant and unanticipated.")
147. Id at 572.
148. Joseph E. Kennedy, "Monstrous Offenders and the Search for Solidarity Through Modern Punishment," 51 Hastings L.J. 829 (2004).
149. Susan Bandes, "Fear Factor: The Role of Media in Covering and Shaping the Death Penalty," 1 Ohio State Journal of Criminal Law 585 (2004). Kennedy, id, at 904.
150. Bandes, "Fear Factor," id at 594.
151. As Alexander Cockburn observed about the McMartin case, "the essential function of most of the press had been to act as a conduit for the prosecution." Alexander Cockburn, "Out of the Mouths of Babes: Child Abuse and the Abuse of Adults," The Nation at 6, February 12, 1990.
152. Stephen B. Bright and Patrick J. Keenan, "Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases," 75 B.U. L. Rev. 759 (1995).
153. See generally Bandes, "Patterns of Injustice," supra note 18.
154. Id at 1317-1340.
155. See e.g. Victoria Nourse, "Passion's Progress: Modern Law Reform and the Provocation Defense," 106 Yale. L.J. 1331 (1997).
156. Cynthia Lee, Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom (NYU Press, 2003).
157. See e.g. "Fear Factor," supra note 109 at 587 (discussing widely held but incorrect perception that the most prevalent murders are those committed by black men against random white victims).
158. Samuel R. Gross & Phoebe Ellsworth, "Second Thoughts: Americans' Views on the Death Penalty at the Turn of the Century," in Beyond Repair? American's Death Penalty (Steven P. Garvey, Ed., 2003).
159. See Scott Turow, "To Kill or Not to Kill: Coming to Terms with Capital Punishment," The New Yorker, Jan. 6, 2003, at 40, 47 (discussing emotional momentum to expand the categories for death penalty eligibility).
160. Bandes, "Empathy, Narrative, and Victim Impact Statements".
161. supra note 17.
162. Liebman, supra note 73 at 2144.
163. Sachsenmaier, supra note 46.
164. Liebman, supra note 73 at 2147.
165. Turow, supra note 75 at 119-25
166. Mandatory Justice: Eighteen Reforms to the Death Penalty (The Constitution Project 2001) www.constitutionproject.org