MILFORD — Gut-wrenching testimony about the impact Cpl. Bryon K. Dickson II’s murder had on his family provided powerful evidence for the death sentence for his killer, Eric Matthew Frein.
It also gave his defense a strong issue in the fight to overturn his sentence, because it might have gone too far, several death penalty experts say.
Over two days, 10 witnesses took the stand to describe the devastation Frein’s crimes had on them. The most emotional testimony came from Dickson’s widow, Tiffany, who spoke of
overwhelming grief that left one of her two young sons so despondent that he wants to die.
As she testified, Pike County District Attorney Ray Tonkin flashed more than a dozen photos on a screen behind her. There was Bryon Dickson at the beach with one of their sons; the couple on their honeymoon; Dickson teaching his son to fish; Tiffany Dickson touching her husband’s casket at his funeral.
Frein’s attorneys, William Ruzzo and Michael Weinstein, objected to the number of photos, arguing their presentation amounted to overkill. Pike County Judge Gregory Chelak overruled the objection.
A Chester County jury convicted Frein, 33, of Canadensis, last week of two counts of first-degree murder and 10 other offenses for the Sept. 12, 2014, ambush attack at Blooming Grove state police barracks that killed Dickson, 38, of Dunmore and critically injured Trooper Alex T. Douglass, 34, of Olyphant. The panel voted Wednesday to sentence Frein to death.
Ruzzo said he intends to raise several issues on appeal, including Chelak’s ruling denying his motion to suppress statements Frein made. That issue impacts the guilt phase of the trial. Ruzzo said he also will attack the sentencing phase. The amount of victim impact evidence presented will be a key issue on appeal.
Several area attorneys knowledgeable about death penalty law agreed.
“You have to be very careful in death penalty cases,” said Ernest Preate,a former Lackawanna County district attorney who secured five death sentences. “You can’t overplay it. ... It might inflame the jury and might very well be a strong issue on appeal.”
Preate and other attorneys stressed they do not know all the facts in Frein’s case and did not want to second-guess or criticize Tonkin. Decisions on what type and how much evidence to present are sensitive issues that must be evaluated on a case-by-case basis, they said.
The attorneys agree Frein’s case could set an important precedent because the question of how much is too much when it comes to victim impact statements has not been definitively ruled upon by any appellate court.
The U.S. Supreme Court has allowed victim impact statements in capital cases since 1991. In its most recent ruling on the matter, the high court last year limited the evidence, precluding surviving family members from asking for a specific sentence for the defendant. It has never ruled on the quantity of evidence that can be presented, however.
“Where do you draw the line on victim impact statements?” asked Al Flora Jr. former chief public defender in Luzerne County who represented several capital defendants. “There is no clear guidance. That’s the problem.”
In sentencing Frein to death, the jury weighed four categories of aggravating factors, which make a crime more heinous, against mitigating factors that lessen a defendant’s culpability.
The defense presented 29 mitigating factors, many of which focused on Frein’s dysfunctional family life. The jury rejected them all.
The fact jurors found no mitigators raises questions as to whether they were unduly influenced by the victim statements, Ruzzo said.
“We don’t know if that evidence was so emotional that it overshadowed anything we could have presented,” Ruzzo said.
That’s the danger of victim impact statements, Flora said.
“The jury may be so put off by victim impact they might say to themselves, we’re not going to find one single mitigator,” he said.
In his closing argument Wednesday, Tonkin blasted the defense’s penalty phase case, noting Frein’s attorneys had no corroborating evidence to support many of their claims.
“As I argued in my closing, the mitigating circumstances lacked credibility and a connection,” Tonkin said Thursday. “One of the mitigating circumstances proposed by the defense was the defendant played video games. People can make their own judgment about that, just as the jurors did.”
Tonkin said state law allows him to introduce evidence about the victim, as well as the impact of the death on the family. He also noted Chelak instructed the jury it could only consider the victim impact evidence if it found a mitigating circumstance existed, and cautioned them that their decision had to be based on a rational analysis of the evidence, not emotion.
“Jurors are presumed to follow the court’s instructions,” Tonkin said. “The court’s instruction was they could not use that evidence unless they found a mitigating circumstance.”
Those instructions bode well for prosecutors in defending the sentence, but it does not prevent the defense from raising the issue on appeal, said Preate and Flora.
“Even if the jury was instructed they couldn’t consider victim impact if they did not find a mitigation factor, it was still before the jury,” Flora said. “How can you say the jury did not consider it?”
The issue on appeal will be if the evidence was overly cumulative, said Peter Paul Olszewski Jr., a former district attorney and judge in Luzerne County who handled several capital cases.
“Cumulative evidence is repetitive evidence that ... was already provided to the jury,” Olszewski said. “It’s highly prejudicial to continue to present the same or similar type of evidence.”
Joshua Marquis, district attorney in Clatsop County, Oregon, and a board member with the National District Attorneys Association, agreed prosecutors take a chance when they present victim impact testimony. He once had to retry a capital defendant three times because the court ruled victim impact statements he presented violated the law. It is a gamble prosecutors must take, he said.
“It’s clearly a risk,” Marquis said. “In fairness to the prosecution, the only safe way is to not put anything on.”
If a prosecutor opts to forgo victim impact evidence, there might not be enough evidence to meet their burden to secure a death sentence, he said.
“If you don’t meet your burden, you don’t have another chance,” Marquis said.
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