The penalty phase of a capital case is one of the most complex and intense of criminal proceedings, because a person's life is at stake. Oregon prosecutor Joshua Marquis says the government wants the jury to know that the defendant is beyond redemption. Defense attorneys want to show that the defendant is not.
"It goes beyond strictly legal issues; you're asking moral questions at that point," Marquis says.
Marquis has handled about a dozen cases that were eligible for the death penalty, and has both prosecuted and defended capital cases. He says defense attorneys try to humanize the defendant as much as possible, while the prosecution does just the opposite.
"[You need to show] how dangerous the person is," he says. "So often, the prosecutor will present evidence about other violent acts that the defendant has committed that the jury wouldn't otherwise know about."
In Rodriguez's case, he has prior convictions for rape and assault. The government must prove such "aggravating factors" beyond a reasonable doubt for him to be eligible for the death penalty.
The defense, however, has a lower standard. It must only prove that facts showing that Rodriguez deserves leniency are more likely than not true.
It goes beyond strictly legal issues; you're asking moral questions at that point.Oregon prosecutor Joshua Marquis
But defense attorney Skip Gant says the odds are still stacked against the defendant in the second phase.
"If you're sitting on a jury, and you heard the facts and circumstances in the Rodriguez case, once you found the defendant guilty, you might be upset and you'd want to do something," says Gant, who assists federal public defenders in death penalty cases. "It's not like the government has to do a lot of coaxing to get the jury down the path toward death."
Nevertheless, Gant says in the death penalty cases he's defended, a defendant's most valuable asset is his or her own history. He says testimony about the defendant's background is often the most persuasive for even the most cyncial jurors.
"Most of them will say, 'You know what, I used to think the abuse-excuse and all that.' But when you hear it and you see it and you live it in a courtroom, of what this individual has gone through, you say to yourself sometimes, 'Gee whiz, well what would you expect this person to be after having gone through that?'" says Gant.
Joshua Marquis says it's not uncommon for the defense and prosecution to bring in evidence unrelated to the crime itself. One topic may be about the prison the defendant might be going to. He says the defense will try to show that prison won't be a pleasant place.
"They'll present, usually retired prison wardens, sometimes video, showing the special management units, showing how tough prison is going to be, so the jury won't think the person's getting off," Marquis says. "By the same token, as the prosecutor, I'll often use the same thing and show the recreation facilities."
Attorneys are expected to begin arguing phase two of the Rodriguez trial next Tuesday.