Yes, seriously, Baez and team are going to present to the jury and judge as many of these mitigating factors as they can. In Florida the jury only has to be "reasonably convinced" of the mitigating factors presented during the penalty phase, as opposed to the aggravating factors which the jury has to believe beyond a reasonable doubt. So, during the penalty phase the prosecution has a much higher burden of proof than the defense. Plus, even if the jury finds that the aggravating factors outweigh the mitigating factors, they are not required to return a death penalty according to the instructions given jurors as ruled by the Supreme Court of Florida. As a juror you're not supposed to base your decision on emotions alone, although that's hard to do as human emotion isn't something most of us can just turn off. That's why the instructions are so important, it gives the juror guidance on how much weight to give a factor to make a decision according to the law.
Then Florida law gets into mitigating statutory factors and non-statutory factors and the different ways they are treated, but this all starts to go over my head since I am not a lawyer. But from my limited understanding, I believe the statutory factors (the listed items 1 - 8 that we have been discussing) should not be given a greater weight than non-statutory factors, which are basically anything else regarding the defendant's character or circumstances of the crime that are not listed as specific statutory mitigating factors.
1) According to the statute no significant
prior criminal history means
prior to the murder. I believe the prosecution will show Casey murdered and disposed of Caylee sometime between June 16 - 24, 2008. She committed the felonies she was convicted of in July 2008. Therefore she has no
prior criminal history. Lying to her parents is not a crime. Lying to LE is a crime, but again I believe that was done after the murder.
2) This one regarding emotional or mental duress at the time of murder could go either way in my opinion. I do think the defense will try to say Casey was in some kind of dissociated state or PTSD because of a traumatic event when she committed the murder. It will be up to the jury and judge whether they believe the testimony from experts such as Dr. Steven Gold if the defense goes with this one, and if they do believe it, what kind of weight they'll give it.
7) Age - This mitigating circumstance does not apply to someone 17 or younger at the time of the murder because they are ineligible for the death penalty in the first place. It applies to defendants who are 18 years old or older therefore eligible for the death penalty. This is a factor that is considered on a case by case basis. Generally the closer to 17 a defendant is the more weight this factor is given. Between the ages of 20 - 25 the court has frequently held that age is no factor unless it can proven the defendant is emotionally, intellectually, and behaviorally immature.
8) Other Statutory Mitigating Factors - The existence of any other factors in the defendant’s background that would mitigate against sentencing of the death penalty. Among those that IMO may be part of the defense strategy are :
(1) Mental problems that do not qualify under other statutory mitigating circumstances. This one has been applied in a case where a psychologist referred to the defendant as an “emotional cripple” who was brought up in a negative family setting. It also applies in cases involving posttraumatic stress disorder as a result of extended sexual abuse. Sounds like Dr. Gold's expertise to me.
(2) Abuse of defendant by parents (physical, mental or sexual) - Defense could go here but in my opinion it would be hard to establish. This may be another factor where Dr. Gold testifies.
These are just the statutory factors. There's several more non-statutory factors, one of which is the showing of remorse. Yes it can be a mitigating factor if the defendant shows genuine remorse for their actions and not just sorrow for the victim. If the defense tries to go here with Casey, I think the prosecution will easily be able to show lack of remorse. So unless KC confesses remorse won't be a factor.
Another non-statutory factor is support of family which seems to be the assignment Cindy, George and Lee have absolutely taken to heart.
(All of above is based on my own opinion after reading about the Florida laws during the penalty phase of capital cases including this reference: document posted by BeanE in the "Mitigating - Aggravating Factors- General Information the penalty phase" thread -
http://www.flcourts18.org/PDF/Eaton/2009_AJS_Pen_Phase_Mat.pdf)
I really think a jury could go either way in this case in regards to sentencing. It's going to be so fascinating to watch both the prosecution and defense during the trial. Personally, I don't think the defense has any strong mitigating factors to present, but it only takes a few jury members to make a difference. Since the judge makes the ultimate decision I could see how he'd hesitate giving a death sentence if the jury returned a 9 to 3 vote for instance.
Mitigation has to be the defense's main strategy in a death penalty case.
