narrative inquiry55744191.pdf

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Stabilizing violence

Structural complexity and moral transparency

in penalty phase narratives

Sara CobbGeorge Mason University

Narratives matter. ey shape the social world in which they circulate, reecting

and refracting the cultural limits of what narratives can be told, in what setting,

to whom. From this perspective, they structure how we make sense of ourselves,

as members of a community, but they also structure how we understand right

and wrong, good and evil. Nowhere is this more apparent than in capital murder

trials in which the narratives that are constructed are literally life and death

matters. e research on narrative processes in capital trials documents how the

courtroom is a place for story-battles where each narrative works to disqualify

the other and legitimize itself, in an eort to structure jurors decisions. is is

accentuated in the penalty phase of the capital trial where both mitigating and

aggravating narratives thicken the narratives told in the guilt phase; in the

penalty phase jurors make the decision to sentence the defendant to either life

without the possibility of parole, or to death. While some research of juror deci-

sion-making shows that jurors favor the prosecution narrative and make up their

minds to give the death sentence independent of the penalty phase narratives,

other research on mitigation narratives shows that contextualizing the defen-

dant, via mitigating narratives, can overturn the power of the prosecution narra-

tive and lead to a life, rather than a death, sentence.is research seeks to avoid

eorts to associate juror cognitive processes to narrative processes and instead

seeks to examine the connection between jury sentencing decisions, for life or

death, as a function ofnarrative closure which is, in turn, dened in terms of two

narrative dimensions: structural complexity and moral transparency. Using this

framework, the penalty phase narratives in two capital trials are compared along

these dimensions; the ndings suggest that moral transparency and structural

complexity provide the foundations for narrative closure in the penalty phase, as

Requests for further information should be directed to: Sara Cobb Institute for Conict Analy-


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both structural simplicity and moral obtuseness are characteristic of narratives

that are not adopted by the jury. While the sample size is small, the narrative

data is rich, and the study, overall, is intended not to suggest a causal relation

between dimensions of narrative closure and jury sentencing, but rather aims to

illustrate a method for assessing narratives in relation to jury sentencing in the

penalty phase of capital trials. However, at the broadest level, the paper oers a

framework for examining the way that narrative works to contain violence.

Keywords: narrative, violence, coherence, moral transparency, structural

complexity, capital trials

Violence disrupts narrative (Girard, 1987; Scarry, 1985). In some cases, the vic-

tims survive and can, over time, make sense of what happened, in conversations

with others, perhaps in courtrooms, perhaps around kitchen tables. In other cases,

the victims are not present, having died or become incapacitated as a result of

the violence; in these cases, it falls to formal institutions, such as courts, as well

as informal networks of families and friends, to make sense of what happened.

In both cases, people create narratives of the violence that contain a sequence of

events with a causal logic, protagonists and antagonists, and moral evaluations.

ese narrative accounts function to tame violence, making it sensible, even ifmorally unacceptable. Perhaps the worst-case scenario is when violence cannot

be narrated people are unable to create a sequence of events that has any plau-

sible causal structure, or unable to assign intentions to actors so as to make those

actions intelligible. In these cases, violence marauds outside of narrative and, in

this way, continues to victimize. Indeed, it is not until violence is structured as

narrative that it can be known, and once known, contained. From this perspective,

capital murder trials play an important role in naming and structuring violence as

narrative. ese juridical processes reect and refract the way that communities

make sense of violence and, for this reason, are useful places to look at the rela-

tionship between violence and narrative.

On April 15, 1988, having foundeodore Wrest guilty ofrst degree murder,

the jury voted, in the penalty phase of the trial, to sentence him to death for the

murders of Nancy Croom and Virginia Aceves;1 Wrest raped and stabbed Nancy

Croom, one of the many homeless on the streets of Santa Barbara, CA, 13 times

aer he had bought her a bottle of wine. Wrest stabbed Virginia Aceves 15 times

many of the wounds were in her hands, inected as she defended herself aer

she le a funeral service commemorating the death of a friend. Wrest is on deathrow in California.


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Sara Cobb

of parole for the murders of his mother, Florence, his father, Al, his sister Diane

and Dianes daughter, Kelly, Barrys niece.2 Barry had taken a shotgun from the

familys gun cabinet and shot his father through the head while he searched fora phone number at the kitchen table. He shot Florence in the chest as she ran to

her husbands aide; however Florence did not die immediately, so aer shooting

Diane who was on the phone in the kitchen and Kelly who stood in the hallway to

the kitchen, Barry followed his mother outside and hit her three times in the head

with a rock as she lay facing him on the ground. He was sentenced to life imprison-

ment without parole.

e nature of the violence redressed in these two capital trials both demands

and dees our collective understanding.3 On the one hand, we must story the vio-

lence, normalizing it through the narratives we use to make sense of death, life,

relationships, love, sex, homelessness, etc., as well as ourselves (Arendt, 1998; Cov-

er, 1995; Feldman, 1991; Fleury-Steiner, 2002; Lara, 2007; Sarat & Kearns, 1993).

On the other hand, violated bodies and horric wounds may continue to defy

containment through narration, as no logic or account can be given that makes

the violence knowable, sensible (Girard, 1987; McKenna, 1992; Quattrone, 2006;

Scarry, 1985). In either case, life imprisonment anddeath are performative narra-

tive events that give meaning and stability to murder.4

ere is a growing research on the role of narrative in criminal trials (Blume,Johnson, & Paavola, 2006; Mertz & Yovel, 2005; Mitchell, 2005; Pennington & Has-

tie, 1991; Sherwin, 1994). is research has addressed the conditions which sup-

port the success or failure of legal narrative in criminal trials; Blume et al. (2006)

provide a summary of this research noting that jurors structure evidence into a sto-

ry format, which helps manage the potentially overwhelming information in a trial;

jurors make their decisions in the context of story-battles (p. 28) in which there

are competing plots, diering characters, and diering views of justice, or what

Labov (1997) calls the evaluative point. e relative success or failure of the legal

narratives to stabilize the meaning of the murders may be indicative of the jurys

decision to nd for life or death in the penalty phase. In other words, the outcome

of the penalty phase of the capital trial may be understood as a function of features

of the narratives that seek to construct and contain the meaning of violence.

ese narratives are initially launched and elaborated in the guilt phase of the

trial. Given that the penalty phase follows the guilt phase, it would make sense that

the adoption of the prosecutors narrative, evidenced in the guilty verdict, would

give the prosecution narrative an important edge. e prosecution narrative has

an advantage as it is the rst narrative that is told in the trial, colonizing the narra-tive space (Cobb & Riin, 1991). However, it is also the case that the penalty phase


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prosecution or the defense narrative, as unfolded in the guilt phase, would remain

unchanged in the penalty phase. erefore, despite the fact that the guilt phase

narratives may be inuential re the penalty phase outcomes, those outcomes, thendings for life or death, need to be understood in relation to the penalty phase

narratives themselves.

ere are two possible relationships between narrative and the outcome of the

penalty phase: (1) the jurynds for life imprisonment as a narrative enactment of

the defenses story; or (2) the jurynds for death as a narrative enactment of the

prosecutions story.5 Conversely, in the penalty phase, the life without parole,

(LWOP) narrative is one that builds on the connections between the defendant,

his or her community and his or her history, eectively humanizing the defen-

dant (Haney, 2008).e LWOP narrative in the penalty phase speaks of connec-

tion and social responsibility. In this process, the cause of the violence is located

in the contextualizing narratives that account for or make sense of the defendants

actions, without excusing the violence. e LWOP narrative is still one that holds

the defendant accountable.

However, the death sentence restores a normative order by demonizing the

defendant:

Indeed, because the violence of a capital case is so extreme, and the defendant

absent a meaningful context through which to understand his actions appears

to be so clearly dierent from the jurors, he is easily demonized (Haney, 2008,

p. 879).

However, at times this violence is so extreme, so inhuman that it is dicult to

create even a demonization of the defendant that balances or ts the violence;6

theorists have noted that violence can, at times, exceed the capacity of narrative to

contain it; the Holocaust has been the exemplar, used by Levi (1988) and Langer

(1993) to make the point that violence can destroy narrative, either because we

cannot build a sequence of events that accounts for the violence, because the de-

gree or the nature of the violence is not tting the cause or because of the issues

surrounding the process of witnessing violence, for building a story of suering is,

inevitably, incomplete. Quattrone (2006), drawing on Levi (1998), notes that there

is a lacuna that exists as a function of the paradox of giving testimony those

most qualied to provide a full account of the violence are dead. And this is the

case in a capital trial the victim(s) can no longer testify. As such, it falls to the

prosecutor and the defense to focus on this empty space and describe what is

missing. If the description is not coherent, if it does not adequatelyll in the la-cuna, the violence can overwhelm the narrative and remain outlaw, outside of law,


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of the defendant would be the only way to contain the otherwise excessive if not

senseless violence.

In summary, the function of a capital trial is to account for an otherwise un-warranted death. e assumption here is that the jury could elaborate the defense

narrative and nd for life in prison without parole or they could elaborate the

prosecution narrative, and nd for the death penalty. To examine the relation be-

tween narrative and penalty phase outcomes, I oer a new method for the assess-

ment ofnarrative closure, as a method for examining the relation between the pen-

alty phase narrative and penalty phase outcomes.e new methodology emerges

from an analysis of the research on narrative closure; its application to the analysis

of the penalty phase of two capital trials is intended to add to our collective un-

derstanding of the structuring role that narrative plays in penalty phase processes,

specically, and more broadly of the way that narrative contains violence.

ese two cases were chosen for several reasons: (a) both trials were in Santa

Barbara, CA, which presumably reduced the cultural variation re the nature of

narratives that would have cultural resonance in the trials the lawyers would

more likely have a shared knowledge about the kinds of jurors and the culture

in the community; (b) there were multiple victims in both cases while this in-

creased the complexity of the cases it also increased the need for generalized nar-

ratives which would have explanatory power across the deaths; and (c) the penaltyphase outcome for one was life and the other death, so, while they were not a

matched case comparison, they were illustrative.

Using these cases, I explore the validity of these narratives not in terms of

their truth value but in terms of the features of narrative that contribute to its clo-

sure, i.e. its capacity to instantiate itself and colonize the semantic eld (Mumby,

1993; Nelson, 2001; Rostron, 2005), and provide the foundation for juror decision-

making.7 While jurors certainly do actively engage courtroom narratives so as to

alter and elaborate them (Conley & Conley, 2009), the exploration here is one

that explores the relation between penalty phase outcomes as a function of narra-

tive closure. e ndings here are not intended toprove that narrative structures

jury decisions in penalty phase deliberations, but rather this narrative analysis is

intended to be illustrative, exploring the relation between narrative closure and

penalty phase outcomes.

While I cannot conclude that these two cases are representative, given the very

small sample, I do suggest that further research on the narrative features of penalty

phases may yield an understanding of the penalty phase that is outside the o-

cial story8 law provides us about penalty phase processes.9 Currently, research onmitigation in capital trials moves in two diametrically opposed directions: Bentele


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that the penalty phase narratives have little to do with the sentences ofeitherlife

or death. However, Haney (2008) has described capital trials as a struggle between

the crime master narrative, which would support the death penalty, and the miti-gation counter-narrative, which explores the history of the violence in light of the

psychological history of a defendants life. He argues that humanizing the defen-

dant is not only a legal requirement, via the presence of mitigation factors, but that

it presents a more complex framework in which jurors make sentencing decisions,

one that would favor life sentences.is implies that mitigation counter-narratives

re-balance what Haney (1997) has noted as the bias toward death in capital trials.

If this is the case, then narratives do impact the sentences jurors make in capital

trials.is empirical analysis seeks to build on Haneys assumption that narratives

matter in sentencing processes within capital trials. However, rather than focus

on the legal categories of mitigation or aggravation, this paper explores narrative

closure as a framework for accounting for sentencing decisions in capital trials.

Again, while this paper is specically focused on capital trials, the processes by

which narratives contain violence, via narrative closure, may be pertinent in other

contexts as well.

Narrative validity as narrative closure

Clegg (1993), in his article Narrative, Power, and Social eory, notes that the

relation between narrative and power has been understood as a function of stories

of revelation and concealment either the narrative concealed or hid the truth,

promoting a false validity, or it revealed the truth, promoting a valid account of

the world. Clegg argues that both of these accounts are problematic for they as-

sume, from a functionalist perspective, that language represents reality.10 Argu-

ing instead for a constitutive perspective on the role of language, Clegg suggests

that narratives construct a social world, i.e., sets of social relations, institutional

practices, normative orders, actor positions, as well as history and future action

trajectories.11is formulation of the language/power relation not only dissolves

the representational view of discourse, it also dissolves the Cartesian distinction

between talk and action talkis action and, as such, it is material (from Latin,

materia). Talk matters.

And it matters because of what is constantly at stake who gets to participate

impacts the social reality that is constructed; the nature of the reality constructed

impacts reexively, who can participate, as well as the nature of their participation.e roles assigned through the enactment of narrative (discourse) impact who/


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Sara Cobb

and all the characters involved. Narrative validity is thus nota function of the

representational capacity of narrative but instead is a function of its authority and

stability, both of which contribute to its closure (Nelson, 2001).As Sarat and Kearns (1993) have pointed out, the penalty phase is the pen-

ultimate struggle over legitimacy the defendants legitimacy is framed by the

defense in stories that narrate the murder(s), the historical context in which the

murders occur, the defendants prehistory, the lives of the murdered, as well as

the meaning of life and death itself. e defendants illegitimacy is framed by the

prosecution in stories about death, the deaths of the victims, the impact of the

murders upon society, as well as the defendants pending death or life imprison-

ment. us, the penalty phase provides the ideal context for the study of law and

narrative validity, as well as the relation between narrative practices and violence,

more broadly.

Narrative closure and complexity. e validity of the narratives which con-

struct the legitimacy of life/death are themselves related to their capacity to en-

fold speakers in their dominion.12is power13 is, in turn, dependent on the

coherence of the narrative. Coherence is a narrative property14 referring to the

unity exhibited in (and constructed by) the part/whole relations within a given

narrative (Agar & Hobbs, 1982) and between narratives (Polanyi, 1979).15 Intra-

narrative coherence is a function of the relation between plot elements, characterroles, setting and themes; inter-narrative coherence is a function of the relation of

a narrative to the nest of narratives which resonate or contextualize it (Chatman,

1986; Pearce & Cronen, 1980). e more unied the narrative, the more closure

it exhibits that is, it is better able to stave othe development of alternatives to

itself (Cobb, 2006; Nelson, 2001; Zelizer, 1993).16 In turn, the unity of the narra-

tive, its coherence, is a function of its complexity the more elaborate the story,

the more sites where meaning is stabilized through contextualizing narratives, the

greater the structural complexity. Structural complexity reduces the multiplicity of

meaning and solidies the meaning system.

Complexity, in turn, can be understood as a function of the integration of ver-

tical and horizontal narrative structures (see Figure 1). Horizontally, the structure

of the narrative is equivalent to the temporal, causal, plot sequence constructed in

the story;17 it is the main plot line. e more events in a horizontal narrative line,

the more complex the story. e main plot lines are usually provided in opening

arguments in trials by both the prosecution and the defense.

Vertically, the structure of the narrative is equivalent to the contextualizing

narratives that stabilize the meaning of events from the main plot line. Contex-tualizing narratives thicken and contextualize the episodes in the main plot line,


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main plot line by speakers to either stabilize or destabilize the meaning of the main

plot line.ey stabilize the main plot line as they provide context for understand-

ing, thickening the story.

However, they can also destabilize the main plot line, by providing a context

that reframes the meaning of the plot event, and therein alters the meaning of the

main plot line. For example, using Figure 1, if Party A tells a story that begins with

the plot event A (Party A is driving down the road), Party B may well work to

reframe the meaning of Event A by providing a subplot, M (Party A had been to

a bar and had several drinks) which contextualized Event A in subplot M, chang-ing the meaning of the entire narrative, destabilizing the meaning of the main plot

line. Predictably, Party A will provide a narrative to contextualize the contextual-

izing narrative M by either working to erase or deny it, or by explaining that they

were in the bar to comfort a friend who had just lost their job.is contextualizing

narrative would indeed re-stabilize the main plot line. Trials (and everyday con-

versations) are replete with contextualizing narratives, as each side, prosecution

and defense, struggles to, upon cross-examination, destabilize or restabilize the

meaning of the event in question.

e penalty phase is the penultimate eort to contextualize the events in the

main plot line, established in the trial itself.e horizontal narrative structure, the

main plot line, is established as a fact sequence by the trial itself; for this reason,

the penalty phase is devoted to establishing the meaningof these events. Here both

the prosecution and defense work to provide context which would support what

Labov (1997) calls the evaluative point the judgment which delivers the

point of the story. From this perspective, the jury, through its decision, elaborates

the evaluative point of either the defense or the prosecution narrative (unless they

elaborate neither narrative and chose the death penalty because it is the only wayto stabilize violence that dees narrative itself).

Figure1.


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in turn, a function of the way characters are positioned in narratives (Harre &

Langenhove, 1999). Positions are the locations in the moral framework within

the story that characters occupy and are tied to the description of their actions inrelation to their duties and obligations. Legitimacy is the result of a character be-

ing framed positively (humanely) in relation to the moral codes that are pertinent

to a given set of rights and obligations; to be delegitimized is to be framed nega-

tively. Relative to the penalty phase, guilt has already been established and the

defendant is already in a delegitimized position. But the struggle over legitimacy

is reproduced in the penalty phase, none-the-less, as the prosecution struggles to

dene the violence as intentional and the character unredeemably evil, while the

defense struggles to contextualize the violence as wrong,18 but the defendant as

human even though not redeemable. In both cases the defendant is positioned

as delegitimate, but in the former, the defendant is framed as evil. In summary,

the evaluative point of the narrative constitutes the defendant as either evil, or as

responsible for violence but human. In turn, the evaluative point is a function of

the vertical and horizontal structural complexity that works to reduce alternative

narrative lines and anchor the meaning of the emergent narrative.

As an example, the defense in the McNamara case argued that McNamara

had killed his family due to his mental illness.19e coherence of the narrative

(the main narrative line in the defense) rested on a set of relations established be-tween plot elements, setting, character roles and themes; summarizing this story:

the defendant had good character as a child, which led to an excellent service record

in Vietnam, which led to a mental decline over a period of years (evidenced by the

loss of multiple jobs, as well as a divorce), which led to mental instability, which

led to a sense of desperation, isolation, and incompetence, which led to the sudden

chaotic murder of loved ones (which became, retrospectively, evidence of mental ill-

ness). Taken together and separately, these stories self-organize a set of structural

relations that ward o alternative narratives; they set the discursive grounds on

which the contestation and dissensus must be established, stabilizing the meaning

of violence.

e prosecutors cross-examination revealed the sites where the main defense

narrative was potentially unstable the connection between the mental illness and

the (disaggregated) acts of murder, the cause of the job losses and the divorce, the

defendants history ofnancial dependency on his parents, as well as the right of

the witnesses to recommend life imprisonment as the penalty (delegitimizing the

speaker as a way to disrupt the coherence of their individual contributions to the

main defense narrative). rough this cross-examination, the prosecutor workedto destabilize both the intra-narrative coherence of individuals narratives as well


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he killed his family for money and inheritance for years Barry McNamara had

been a source of worry and trouble for his parents, unable to get and hold a job,

mooching o them nancially and demanding their continued emotional involve-ment; nally the defendants wife divorced him and he moved back in with his par-

ents who grew increasingly fearful of him and even tried to have him committed;

McNamara resisted their help and probably asked them for money for gas the morn-

ing he shot them; when they probably refused, he shot them in a t of anger; he then

robbed the dead bodies and drove away, hoping to remain free to collect the inheri-

tance. We know from the outcome that the prosecutor was not successful his

narrative did not colonize the jurors and life imprisonment, instead of death, was

their sentence. e morality of the prosecution narrative was simply not complex

enough to account for the relation between the murders themselves, gruesome

and terrible, and Barrys motivations (needing money). As a result, the prosecu-

tion story remained structurally simple, unable to provide a logic that would hold,

relative to Barrys motivations the story was not structurally complex enough

to stabilize the construction of Barry-as-evil. e need for money, which requires

instrumental calculation, does not t the explosion of violence that included bash-

ing his mothers head repeatedly, nor does it lead, logically, to the killing of Bar-

rys sister or her niece. Alternatively, the prosecutor could have argued that Barry

killed everyone in a t of anger, but there are no contextualizing narratives thatprovided an example or a history of this kind of anger.20 Furthermore, the t of

anger contextualizing narrative does nor resonate with the evaluative point either

killing for money, as a narrative, implies calculation and rationality, not a t of

anger. us the prosecutors story lacks validity, as it is not structural complex. As

a result, the prosecutors narrative is less valid than that of the defenses narrative.

Structural complexity creates and supports narrative stability and in so doing, is

an important dimension of narrative validity. However, the latter is also dependent

on the transparency of the moral frameworks that are advanced in the narratives.

Narrative closure and moral transparency. e legitimacy/validity of the pen-

alty phase narratives is not only related to complexity, it can also be understood

as related to moral or evaluative transparency. I am using this term to refer to

the explicitness of the moral order in the story, which, in turn, can be seen as

reexively related to the explicitness of positive and negative value attached to

character roles. e more explicit the moral order, the more stable it will be in

subsequent interaction, for even though explicitness opens the narrative up to

subsequent contestation, any exiled meaning is doomed to struggle for legitimacy

on the grounds already set up by the explicit moral order (Bamberg & Andrews,2004; Kristeva, 1982). Furthermore, since penalty phase narratives are essentiality


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Sara Cobb

2002). Mainstream moral orders are reections, in turn, of the array of narra-

tive themes that circulate in and comprise our communities. In this way, explicit

moral orders in penalty phase narratives are alreadylegitimized in the culture and,precisely because they have the weight of the culture behind them, they are more

dicult to contest and dislodge.

For example, the prosecutor in the Wrest case, in his summation, said that

Wrest killed and raped women because of his personal need for money and sex

(11.2627, p. 1391). He contrasted this personal need with the ethic of care that

ows from e Golden Rule: Do unto others as youd have others do unto you.

(11.2526, p. 1396):

But the key here is careAnd when he attacked [Mrs. Bolin] with a replace

shovel and then with a 10 inch butcher knife, he didnt careand he certainly

did not care when he plunged that knife into Virginia Aceves, because she was a

perfect stranger to him. And he didnt care when he ran down the street as he was

throwing the contents of her purse away, looking for money. He killed her and he

didnt care. He had a need, he had a sexual need. And to satisfy that need, three

separate women sueredso why do you think he should care now if hes going

to prison? Why? His life has not been one showing anything other than that he

didnt care about anybody but his own needs and his own wants (11.328, p. 1397

and 11.120, p. 1398).21

Here the moralityows from the Golden Rule which constructs Wrest as immoral.

is morality is exceedingly culturally rooted and is, consequently, very dicult to

contest; the explicit connection between the lack of care (an uncaring person) and

the acts of violence by Wrest ensure his position as immoral in the prosecutors

narrative.22

is is a very transparent moral construction, as opposed to one of the defense

narrative in the Wrest case: Wrest had a hard childhood that included poverty, so-

cial isolation and physical abuse, which led to his development as a violent person,

which caused him to commit the murders.e moral order that is advanced here

is that people can be victims of their childhoods, and we need to therefore judge

them less harshly. Indeed, in this case, the moral order is explicitly pointed in the

direction of requiring understanding from the jury. However, this narrative has a

missing link which the prosecution nds and accents: what is the explicit connec-

tion between a bad childhood and stabbing a woman 15 times?23e prosecutor

argues that many people have sad childhoods and diculties and do not grow

into murderers.e dissolution, by the prosecutor, of the moral order advanced in

the defense narrative was apparently eective; the jury enacted the Golden Rulenarrative (ironically!). e defense had failed to oer a transparent moral order


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Penalty phase narrative assessment

I have suggested that there are two variables that contribute to the validity andstability of penalty phase narratives: structural complexity and moral transpar-

ency. e stories in the penalty phase can be evaluated according to these two

variables, on the assumption that narratives that are both complex and transparent

most adequately stabilize the meaning of death. Using this framework, there are

four kinds of penalty phase narrative stories possible: (I) transparent and complex;

(II) neither complex (simple) nor transparent (obtuse); (III) transparent but not

complex (simple); and (IV) complex and obtuse (not transparent) (see Figure II).

Figure2.

In the sections that follow, I oer an analysis of prosecution and defense narra-

tives from the penalty phase of the Wrest and the McNamara capital trials, using

the variables that pertain, theoretically, to narrative validity: structural complexity

and moral transparency.

e Wrest case: Moral transparency and structural complexity in the prosecution

narrative (Category I) vs. moral obtuseness and structural simplicity in the defense

narrative (Category II). Category I narratives of death are elaborately contextual-

ized so that potential sites of instability are sealed o and their morality is trans-

parent, which creates cultural resonance, stabilizing the narrative. In the Wrest

case, the prosecution narrative was both complex and transparent; the complexityis visible through the analysis of the vertical and horizontal structure. All the tes-

timony of witnesses works to contextualize and elaborate the main narrative line,

which is a story about extreme violence done by Wrest in his short life. Aer some

introductory comments, Mr. Sneddon, the prosecutor, opened the penalty phase

recounting Wrests multiple convictions and foreshadowing the story he would tell:

Now, unlike the black-and-white, succinct and simple recitation or description of

the various crimes that are involved here and other crime evidence that we intend

to produce, we believe that the testimony and the evidence in this case will reveala portrait of a man whose relatively short life has been basically characterized by

h ll d f l d h h (


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Sara Cobb

Sneddon then moves through a description of Wrests life by punctuating time via

acts of violence by Wrest, distilling Wrests life into the discrete acts of violence

against six women [two he attacked in years prior to the three women he attackedon the night of the murders, and one other woman (Shannon Alton) who was at-

tacked and raped in her home in the days subsequent to the murders, prior to his

capture]. Each story telescopes the violence by progressively narrowing the frame,

compressing time, and highlighting the bodies of both the victimizer and the vic-

tims, increasingthe structural complexity.

For example, in Sneddons rst story,24 Miss Smith, a high school teacher,

came home one day from a school assembly in a clown costume and noticed that a

door was unlocked and some household items were misplaced.25

Now, about that time, from behind her she hears a click of a latch on the door. And

as she begins to turn, suddenly the defendant jumps from the utility closet with

a shovel, one of those shovels from the replace groupings, in his hands, over his

head and he screams at her, Im going to kill you! Im going to kill you!

Now, Miss Smith, dressed in the clown outt, recognizes the defendant. I say

recognizes the defendant because he had made some rather pathetic attempts to

alter his description by putting a nylon stocking mask over his face and wearing a

heavy coat.

Well, Miss Smith looked rst of all, she grabbed a shovel and said, No,youre not, Teddy. And when she said No, youre not, Teddy, he sort of hesitated

and was startled that she recognized him so quickly. She then realized that she had

only been pinned back against the door and that her only way of escape would be

if she could turn the defendant around and run through the house out the front.

Now, Miss Smith, unlike some of the other victims in the particular case, is

a woman of fairly sizable proportions. At this time she was about ve-foot-six,

which was about the height of the defendant at that time, but she weighed a little

over 200 pounds. So, she was able to take the shovel and leverage her weight and

turn the defendant around and pushed him against the wall or door. And whenshe did that, she did it with such force that she was actually able to wrench the

shovel out of his hands.

Now, before she could turn and run, the defendant displayed or brandished a

knife in his le hand. She didnt realize in the beginning that the knife had actu-

ally been up there with the shovel. She recognized the knife. e knife came from

her kitchen. It was a 10-inch long butcher knife. He raised the knife and again

screamed, Im going to kill you.

Well, as he did, she simply took her st and punched him on the nose. She

thinks she broke his nose, because blood splattered all over the room. From thepain, he was startled and dropped the knife. She then grabbed him and pushes

him towards the front and out the door of the house and then quickly locked the


14/30


is passage from the penalty phase elaborates and contextualizes the story that

Wrest has lived a life of violence. Collectively, each of these stories of violence

display a pattern and anchor the main narrative plot line Wrest attacked womenrandomly, with increasing severity, causing increasing wounds until his career of

violence culminated in the completion of acts he had been trying to complete over

several previous unsuccessful attempts. e murders thus became what Bennett

and Feldman (1981) would call the central action of Sneddons narrative. And,

indeed, the murder stories are even more elaborately telescoped, time stopped

completely through the display of photos of the victims bodies which are system-

atically deconstructed through the nature and extent of their wounds. Sneddons

narrative grows exceedingly complex as witnesses stabilize the stories of other wit-

nesses, who, in turn, told stories that stabilize the meaning of the violence in the

main plot line: in his career of violence Wrest had made violent acts the point of his

life and aer some failures, he wasnally successful in his eorts (to rape and kill).

Despite its complexity, Sneddons narrative remained causally incomplete and

morally obtuse until his closing statement in which he supplied the cause of the

violence Wrests need for money and sex and his disregard for the Golden

Rule and care for others. Sneddons narrative was extremely transparent both

the causal logic (money and sex) and the evaluative map (the Golden Rule)

are obvious and explicit. At this point, Sneddon had organized a story of Wrestslife that was exceedingly dicult to destabilize, a story that required completion

through Wrests own death.

e defense narrative in the Wrest case, told by Mr. Cannon, was neither com-

plex nor transparent (Category II). Mr. Cannon made no opening statement (only

cross-examining two witnesses for the prosecution); instead he opened his case

through the examination of Wrests sister, Cummings,26 who testies that Wrest

was picked on by other kids because he was small for his age as a child, that their

parents had been very poor, that their mother had not been very competent, that

he had been slow and had a speech problem, that they had been forced to live

separately in group homes because they had stolen cars and snied lighter uid

as adolescents. Following Sneddons cross-examination of Cummings, Cannon

makes his closing argument in which he asks the rhetorical question about who

the death penalty is for and answers that it is not for the young, the incompetent,

the addicted, or the ones who had no help. As this passage shows, there is no ex-

plicit connection between the bad childhood story and the murders:

You may say [the death penalty] should be reserved for the people who have the

capacity to think out or scheme or plan a murder. Or you may say that the death

penalty should be applied to a person who kills children, because we all have a


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Sara Cobb

But I really question whether society through you, should kill somebody

whose frustrations, whose anger, whose resentment, whose emotions did over-

come him one night of intoxicated and senseless attacks; someone who had the

opportunity to kill the next time out, Mrs. Shannon Alton, and didnt take it.

Please question whether that person ought to be the kind of person that the death

penalty is designed for.

Should society, in other words, kill a person who is 22 years old, who loses

it with alcohol and frustration? Or should they reserve the death penalty for far

more evil minds that plan and scheme and plot.

Ted Wrest will never get out of prison. e acts that he has committed were

totally impetuous and obviously not planned.

If you choose the death penalty, having in mind that you are really better than

Ted Wrest, you were given better gis, greater gis, then I think society, through

you will have said, we should kill Ted Wrest, though he didnt have the smarts

that God gave the rest of us. We should kill Ted Wrest though he never had the

emotional make-up to endure or hang on for one more day, at least until he could

mellow out or mature. And we should kill Ted Wrest though he never had the

insight to see what alcohol can do to you and that alcohol can make you a slave.

And if you kill Ted Wrest, it may be proper to say that weve betrayed our

honor a little bit.

ere is honor in banishing Ted Wrest to a place where his desires will die, his

emotions will die, his spirit will die, and then he will die. And if society is better

than Ted Wrest, if they are, I dont think that theres any honor in society descend-

ing to his level. ank you for your patience (11.2128, p. 1418; 11.128, p. 1419;

and 11.111, p. 1420).

While this passage does imply a linear causal connection between Wrests age, his

alcohol consumption,27 his lack of intelligence and his limited emotional strength,

these links are not explicit nor have they been, with the exception of the alcohol

cause, temporally or causally arrayed on a plot line. As such, each operates as an

extremely unstable antecedent condition to the violence, so unstable that Cannonhimself worked to anchor it when he began the poor childhood narrative:

And youre probably thinking, at least the men might be thinking to themselves-

and, frankly, Ive had this thought myself-Hey, I had a little bit of trouble in

school and I didnt kill anybody. Or Gee, I had some trouble with the books or

trouble with some subjects, and I didnt kill anybody. And youd be absolutely

right if you had had that thought (11.2026, p. 1410).

en Cannon proceeds to oer two contextualizing narratives that explain why

Wrest was dierent from others who have had a hard childhood: (1) he had mul-

tiple problems; and (2) he had no emotional refuge However, these reasons slid


16/30


raped in her closet oats disconnected, unexplained; a bad childhood may lead to

violence but does it cause the specic acts telescoped in the prosecutions presen-

tation of the violence? For example, aer Wrest raped Mrs. Alton, he withdrewhis penis and ejaculated on her stomach, while he was kneeling between her legs;

then, her story goes, Wrest took a jacket from the closet, put it on, stood in front

of the mirror and combed his hair. Had Wrest been distracted, depressed, or in-

capacitated by his own violence, the bad childhood story would be more caus-

ally connected to the violence. As it stands, however, the defense narrative cannot

contain or stabilize the meaning of the violence rather, Wrest remains inhuman,

or evil.

e defense narrative is also morally obtuse there is no morality oered as

an alternative to the prosecution except for the moral position Cannon constructs

for the jury themselves: he suggests that the honorable choice is life imprisonment

and that in choosing life, the jury can avoid stooping to his [Wrests] level by

avoiding murder. However, his story mistakenly equated the death of the women

with Wrests death; the court ritual itself elaborately dierentiates the violence re-

dressed by law and the violence done through law: (1) the order of the court vs.

the chaos of the violence; (2) a planned death vs. random death; and (3) the col-

laborative deliberation of the jury vs. the non-consensual actions of the defendant.

As Sarat and Kearns (1993) point out in their study of capital narratives, the workof law is to hierarchize violence so that the victimizer does not become a victim;

thus, the defenses morally obtuse narrative worked upstream against the ritual of

the penalty phase which, if it does nothing else, distinguishes the violence outside

law from the violence within. In this way, the moral order advanced by the defense

was negated by the ritual of the law itself.

e McNamara case: Moral transparency and structural complexity in the de-

fense narrative (Category I) vs. moral transparency and structural simplicity in the

prosecution narrative (Category III). e McNamara case also contained a narra-

tive that was both transparent and complex (Category I), the defense narrative;

however, the prosecutors narrative was transparent but not complex (Category

III). e defense, Mr. McGrath, opened with a legal narrative, foreshadowing the

penalty phase process as one that culminated in the jurys evaluation and assess-

ment of mitigating and aggravating factors. McGrath then details those factors,

including one aggravating (multiple murder) and four mitigating: McNamaras

good character; the absence of any felony record; the absence of any previous vio-

lent behavior; and the presence of mental illness which had bearing on whether

he had an extreme mental or emotional disturbance at the time he committedthese crimes (11.1820, p. 7174). is legal narrative and its categories provided


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Sara Cobb

as well as any history of violence, and the presence of mental illness); (2) these

themes were organizing principles for the presentation of McNamaras life as a de-

cline, culminating in the murder of family; and (3) these themes became factorscentral to the judges instructions. e testimony ended with narratives that con-

textualized the penalty options for the jury: McNamaras ex-wifes account of the

negative impact of McNamaras death on his children, nishing with a story from

a friend of McNamaras mother, Florence, whom he murdered; this friend of Flor-

ence said that she thought McNamaras own mother would want him to have life

imprisonment.en in his closing statement, McGrath told several stories which

contextualized both the life and the death options: aer noting that the remaining

family wished for his life, McGrath noted that doubt is always possible, implicating

the law as potentially unstable and dangerous; he told another story about his own

fear that he might fail in his attempt to save McNamara and he worried out loud

to the jury about his own culpability, should theynd for death; he constructed an

experience of life imprisonment by comparing the life McNamara would have

with his own life, i.e., he, the defense attorney, would raise his children, pay ohis

house, retire and hold his grandchildren while Barry waited to die in prison; Mc-

Grath contextualized the story by yet another story life in prison was a life-time

of remorse.

Yet perhaps the most signicant of these narratives which contextualized lifeand death was a ctionalized videotape of an execution by lethal injection;28 the

tape not only dramatized the execution as a death, it told the story of how both

the members of the defendants family, as well as the family of the dead 17-year-

old, suered by the death of the defendant; the tape thus suggests that execution

does not bring peace to the people involved. is narrative destabilizes the role

of death-as-completion, contextualizing the execution as widening the circles of

suering.

Collectively, the temporal narration of the mitigating factors by multiple wit-

nesses (26 defense witnesses), mapped onto the history of the defendants life, to-

gether with the narratives which contextualized both the life and death options

neatly maps onto the structure of the legal narrative McGrath told in his opening

statement. is is an extremely complex narrative that has considerable explana-

tory power, while containing or stabilizing critical sites within the narrative. It is

both horizontally and vertically complex in structure.

But the defense narrative is also morally transparent: McGrath not only ex-

plicitly contextualizes Barrys illness with stories about our collective social re-

sponsibility to take care of the sick, he asks every single witness to give theiropinion regarding the appropriate penalty and then asks them why; witnesses


18/30


explicit it is wrong to kill those who need help and it is right to protect Barry

from himself and from others.

McGrath then frames that morality with a story from the Bible, using Cainand Abel as a contextualizing narrative of the death penalty, but it also frames

Barrys murder of his family members:

Forgiveness and mercy are shown in the Bible in the book of Genesis, the fourth

chapter, when the story of Cane29 and Abel is told. And Cane killed Abel. And

when the Lord found out about it, he banished him from that area. He did not

execute Cane but he banished him, and that was considered sucient punishment

there. We have a similar condition here. We have siblings here. Barry killed his

sister and his parents and his niece (11.1522, p. 7695).

rough this parable, McGrath makes an explicit connection between that the

Biblical story and Barrys situation and the conclusion is that the jury, like God,

could show mercy and compassion by banishing Barry to prison, rather than ex-

ecuting him. By contextualizing life imprisonment as a divine act, within an ethic

of care and connection, the defense narrative resonates with the account of Barry

as ill and consolidates the listeners, and jury, as his community.

However, the prosecution narrative in this case, although it was morally trans-

parent, was not structurally complex (Category III). McKinley opened (p. 7708)

discussing the meaning of mitigation and aggravation, pointing out that the

jurys assessment is not a summative process; he frames the Cain and Abel story

as a Jerry Falwell(ing) practice, negatively positioning McGrath in the process.30

en McKinley moves into the heart of his story about the murders. He suggests

four alternative possibilities,31 which he frames as possibilities:32

He killed them for money, not $77, okay? He killed them for money and property,

a place to live, a share of Als invention royalties on the watch, a four hundred

thousand dollar ranch house thats almost paid for and a place to live, okay?ats

one possibility.

Whats the second? ere was a ght or argument. Something happened.

ey blew up. And that there is no direct evidence of that since the people that

could tell that are obviously dead.No one will ever know if it happened or not,

but if it did happen the scenario could have been one ofve, six, seven, eight, nine,

ten things. Barry asked them to give him some money for gas and the Dad nally

said no. Barry asked to borrow a credit card and they said no. Al or someone

caught Barry with a stolen credit card the day before or a few hours before the

homicides and confronted him about it and that led to it. Barry said, I dont really

have a job, can I stay? And they said No.

But thats not what happened, of course, because, even if a ght occurred be-


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Sara Cobb

A third possibility. Gave Barry an ultimatum or a deadline to get out. Barry,

youre leaving Monday morning or whatever. And as the day approaches Barry

says, No, I dont want to go. I dont have a job, or Can I stay another week? I just

want to stay here and watch TV and eat, or whatever, and they said, No. And he

sat and stewed and thought about that, in nally said that either, Im not leaving.

Im just going to kill them all and Ill stay here.

And four, all of the above. Killed them for money. Killed everyone to make

sure that there were no witnesses and that he could get away (11.13, p. 771711.22,

p. 7721).

Only one of these narratives has any resonance with a previous story there was

a story already developed by the defense that Barry was out of work and could

not hold a job; McKinley rips this narrative out of its context (mental illness) andhopes to use it to install money as a motive for murder. However, not only do these

four possibilities fail to anchor themselves because, by denition, they are only

possible explanations, they are not contextualized by other narratives that con-

nect the murders to money or to poor relationships between parents and Barry.

Although some defense witnesses had testied to the presence of family problems,

there were no stories that Barry had ever been inappropriate with his parents.

Likewise, although Barry obviously had no means of self-support, there were no

stories by either prosecution or defense that Barry needed money or had a high/fast standard of living. How long had Barry been without money? Who did he

owe money to? If he planned the murders in order to inherit, what was his plan to

escape the law? Had Barry ever spoken to anyone about his resentment over his

parents treatment of him? Stories that address these questions are needed to sta-

bilize the meaning the prosecutor assigns to the murders. So although McKinleys

narrative is morally explicit or transparent (Barry killed for money), it is woefully

unstable, which contributed to the jurys enactment of the defense narrative, life

without parole.

McKinleynished his case with a telescope step-by-step narration of the

four murders; but, in my view, this gruesome story only makes the Barry killed

for money narrative less plausible, for how could anyone in their right mind

methodically do to family members what McNamara did?e violence McKinley

describes is so vivid (McNamara had his fathers brain matter dried on his hat

when he was arrested) that it dees the logical causal arrangement that McKinley

oers as the prosecution narrative. Ironically, the violence can only be stabilized

by the defense narrative, precisely because mental illness is perhaps the only

container able to stabilize the horror of familial murder. And lucky for Barry, itwas a container that invoked connection, care, community, and life.33


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Conclusion

As both NGOs such as Amnesty International34

and scholars such as Berk, Wise,& Boger (1993) point out, there is more than a little anxiety in the legal system

regarding the arbitrariness of the death penalty and, even further, concern for bias

in terms of racial discrimination.35 Analysis of the validity of penalty phase nar-

ratives contributes to the chorus of claims that law is unlawful, willy-nilly, capri-

cious, and violent (Sarat & Kearns, 1995). Although there are multiple narratives

present, at multiple levels of analysis, there is a structure to the emergent meaning

in penalty phase narratives, a narrative scaold on which the penalty itself devel-

ops (Jackson, 1988). And this structure, constituted through narrative, colonizes

the discursive eld, not by besting alternative stories, for this is not a game of

English cricket;36 it grows, solidies and consolidates itself by extending its ex-

planatory dominion, not only by enfolding characters and events (structural com-

plexity), but by connecting itself to the web of cultural stories rooted in the paideic

communities where speakers (jurors) live (moral transparency).

In the penalty phase, this enfolding and connecting is unregulated but not

chaotic for, even though there is much discourse that is regulated,37 the only re-

strictions on narrative construction are those imposed by convention and culture

which, in turn, systematically regulate the character roles, plots lines, and themesthat represent violence.e validity of penalty phase narratives rests on their com-

plexity and transparency, features, I have argued that are constitutive of penalty

outcomes.

If this is the case, justice is not a function of truth, but rather a function of nar-

rative construction and all the cultural politics that accompany that process. From

this perspective, life and death depends not only on the individual narrative prow-

ess of attorneys (as the critics of the death penalty suggest), but also on the nature

of the stories that the culture will elaborate (Fleury-Steiner, 2002).

Furthermore, to the extent that penalty phase narrative construction follows

narrative folk practices, narrative coherence, as a function of moral transparency

and structural complexity, may be pertinent to the adoption and elaboration of

narratives of violence in other contexts as well. While more research would be

required, the theory of narrative coherence oered in this paper suggests com-

ponents of narrative structure (complexity and/or simplicity) as well as narrative

evaluation (moral transparency and/or obtuseness) are functionally tied to the sta-

bilization of the meaning of violence. Increasing our collective knowledge about

making sense of violence may be important, in the long and the short run, to ad-dressing, if not redressing,38 violence.


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Sara Cobb

Acknowledgements

I would like to acknowledge the contribution of Karine Bohbot; as my Research Assistant she

helped map out the narrative structure ofPeople of the State of California vs. McNamara.

Notes

. In People of the State of California vs. Wrest, Mr. Sneddon was the prosecutor, and Mr. Can-

non the private attorney for the defense. e penalty phase in this case was notpreceded by the

guilty phase because, as the jury was being picked, this (white) defendant pled guilty to two

counts ofrst-degree murder and one count of attempted murder; all the special circumstances

were found to be true. Additionally, the prosecution brought in Miss Smith (now Mrs. Bolin),

Mrs. Peck and Mrs. Alton. All three women testify that they were attacked in their homes; the

former two testify that they were beaten and the latter testies that she was tied up and raped.

ere is one witness for the defense and there are 17 witnesses for the prosecution.

. In People of the State of California vs. McNamara, Mr. McKinley is the Prosecutor in this

case and Mr. McGrath is the defense attorney (public). Mr. McNamara, a white man, is charged

with four counts ofrst-degree murder, with special circumstances. In the penalty phase, there

are 26 witnesses for the defense and no witnesses for the prosecution, although the prosecutor

cross-examines eight witnesses regarding either the content of their testimony or their role as

an advocate for life.

. McKenna (1992) makes this point in his discussion Tracing the Victim in his bookViolence

and the Dierence. In this section, he acknowledges the power of the victims body to compel

our attention, our involvement and yet our eorts to describe and contain the death will invari-

ably fall short of total containment. From this perspective, there is a permanent slippage in the

semiotics of violence once dead, the body can continually be rewritten (Feldman, 1991). If

that is the case, law can be understood as the stabilizer necessary to reduce the multiplication

of meaning to reduce and distill the meaning attached to the body. Covers (1995) notion of

the imperial mode becomes the means through which violence is historicized and the body

of the victim, domesticated.e imperial mode reduces and distills the local, communal valuesthat are, by nature, grounded in every day (evolving) practice, into an abstract normative order

where general principles, rather than relational connections, apply.

. See Sarat and Kearns (1993) for an excellent discussion of capital trial narratives and the di-

lemmas of representing violence. See Fleury-Steiner (2002) for discussion of jurors narratives,

as collected post trial, through interviews. While this does suggest that jurors draw on racialized

narratives from dominant culture, the data is self-report data of narratives, rather than a discur-

sive analysis of the trial itself, as was the study by Sarat and Kearns (1993).

. See Blume et al. (2006) for an analysis of narrative guilt. See Feldmans (1991) discussion of

the narrative work done to stabilize the meaning of dead bodies that can transforms victim tooutlaw. He notes that the hunger strikes by the prisoners in Northern Ireland were discursive


22/30


. See Sarat and Kearns (1993) for a narrative analysis of death narratives.

. See Jacksons (1988) critique of Bennett and Feldman (1981); he suggests that these authors

make the mistake of presuming that there are two main narratives in the trial and then Jacksongoes on to argue, quite eectively, that there are multiple narratives operating at dierent levels

of analysis. While his position makes good sense to me, I would like to extend Bennett and Feld-

mans model to see how the narrative structure in the penalty phase can be understood in terms

of competing narratives. is, for me, is a way of mapping the penalty onto the legal process as

a narrative enactment.

. See Sarat and Kearns (1993) A Journeyrough Forgetting: Towards a Jurisprudence of

Violence in their booke Fate of Law. In this article, they map out laws construction of its

ocial story regarding its relation to violence.

. Outcome studies of criminal legal processes have largely focused on jury composition andjury process. Simulated juries have been used to provide information regarding jury processes,

i.e., conict patterns, leadership styles, as well as gender, race, and class variables. See Mertz

and Yovel (2005) for a review of the research on courtroom narratives that details research that

addresses the complications of combining narrative discourse and legal discourse the former

provides a language of emotion and relationships, while the latter is based on an Aristotelian

logic. e result is that much of the human features of narrative are drained out of legal nar-

ratives. In this tradition, this paper is an attempt to follow Sarat and Kearns (1993) research

on violence narratives in capital trials on the assumption that the analysis of these narratives

enables understanding of how violence is represented as well as how the violence of law is dis-

tinguished from the violence law redresses.

. Bennett and Feldmans (1981) research on story construction in the courtroom provides

a useful account of the utility of the story framework as a way for evaluating criminal trial

processes. And certainly their work is applicable to the penalty phase. However, their interest

in the use of story to assess justice and detect bias not only maintains the positivist base on

which law founds its objectivity and neutrality, it retells, as Clegg suggests, either concealing or

revealing narratives about stories in the courtroom hence the title Representing Reality in the

Courtroom. Jackson (1988) is gentler with Bennett and Feldman than I, suggesting that these au-

thors waver between a representational view of story and a discursive view of story. e former,

Jackson notes, leads Bennett and Feldman toward a distinction between story and evidence (theevidence must be woven into the story), while the latter view reduces truth to a set of internal

relations with the story. See Jacksons discussion of Bennett and Feldman in his Chapter 3: e

Narrative Model of Fact Construction in the Trial: Semiotics and Social Psychology, particu-

larly pp. 6176.

. e constitutive perspective on language and discourse is now quite widespread across mul-

tiple disciplines. For example, see Atkins and Mackenzie (2008), Fairclough (1989), Feldman

(1991), Foucault (2002), Gramsci and Hoare (1971), Hall (1982), Laclau (1984); Scarry (1985),

Shapiro (1988), Shotter (1984), and Winslade and Monk (2008). For the purposes of this paper,

the literature in critical legal studies that addresses the discourse/power relation has been veryhelpful; see Bumiller (1992), Goodrich (1987), and Sarat and Kearns (1993). Also see some of

the feminist legal scholarship such as Fineman (1987)


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Sara Cobb

. See Cobb (2006, 2008) for research on conict processes that describes legitimacy as power

in narrative dynamics. See Bamberg and Andrews (2004) for an analysis of counter-narratives

as forms of resistance in conicts. See Nelson (2001) for a theory of how narrative damages

identity and colonizes consciousness. Finally, see Mumby (1993) for several good papers on thepower of narrative.

. Many have made the point that power all too oen becomes a metaphor that itself enfolds

us in a discourse of positivism, forcing us to make instrumental links between people and their

action. See Cobb (2003), Fairclough (1989), Foucault (2002), and Hall (1982) for particularly

clear re-denitions of power as the process of the production of consensus as it involves co-

optation, marginalization and centralization.

. Although Bennett and Feldman (1981) are oriented to legal judgment and interpretive prac-

tices and this paper is not, I still nd their discussion of coherence compelling they note that

an unequivocal interpretation is one that has internal consistency and descriptive adequacy

or completeness. While they discuss coherence as a function of the t between the story told

and the stories that comprise the world of the jury, I will discuss coherence as a self-organizing

process dependent upon a set of structural relations internal to the story.

. Coherence is a much-discussed topic in discourse and narrative analysis. I recommend

Mishlers (1995) review of the topic; he provides a critique of the structuralist models and ad-

vocates an interactional perspective on coherence as a collaborative, conjoint accomplishment.

For my purposes, I shall adopt Mishlers perspective toward the examination of the inter- and

intra-narrative relations.

. is is a tenet of many of the poststructural approaches to discourse. For example, see Fou-

cault (2002) and Gramsci & Hoare (1971). Of course, I do not wish to imply that unity is ever

complete, or hegemony total.

. e horizontal structure emerges through the course of the testimony. I had anticipated that

the prosecution and the defense would open the trial with a main narrative line on which they

would elaborate the witnesses testimony. Instead, I found that, in the Wrest case (the death

case), the defense did not even make an opening statement and it was only in his closing re-

marks that he oered the jury a horizontal sequence of events. However, the prosecutor in the

Wrest case did open with a main plot line; however, some of the stories the witnesses told were

not clearly related to the main plot line. For example, several police and pathology experts testi-

ed about the crime scene, which elaborated the violence but did not tie it explicitly, back to the

causal logic in the main narrative line.

In the McNamara case, the defense opened with a narrative but it was not a retrospective

story of what happened but a prospective story about the role of the jury. It was a legal narrative

that would structure the stories witnesses told via legal categories (mitigating and aggravating

factors).e prosecution did not tell an opening narrative in the McNamara case.

. See Cobb (1994) for an analysis of the social construction of intentions.

. In the sanity phase, the jury had found the defendant to be sane at the time of the murders.Even so, the jury could (and did) conclude that McNamara was incapacitated by his mental ill-

ness that surely clouded his judgment and contributed to the tragedy


24/30


. e prosecutor could have connected the killings to Barrys military service in Vietnam,

arguing that he was able to murder without feeling, in a calculating manner, in keeping with the

evaluative point of the prosecutors narrative that Barry killed for money. But the Vietnam

contextualizing narrative could have also easily backred, as there is substantial public knowl-edge that Vietnam contributed to mental illness. Perhaps for this reason, the prosecutor did not

use this as a contextualizing narrative.

. Conversation analysts may criticize this display of the data, preferring instead a display that

contains all the pauses and overlaps. But that kind of data can only come from an audiotape

that is not available. e transcript, which is a public record, appears as I have represented it.

See Emerson (1993) for a critique of the use of court transcripts for narrative analysis; he claims

that transcripts reduce the various lived realities of actual trials to speech presented in relatively

impersonal, determinant, and sequenced forms (p. 61). In my view, speech is not separate from

experience and reality is the material sequencing of meaning and relationships into narratedform thus, transcripts are not distortions of real meaning. And since there is always slippage

in meaning and loss of information no matter the representational form, I also disagree with

the conversation analysts who hope through accurate representation of discourse to produce

a more accurate reading.

. It also positioned the jurors in the narrative in a paradoxical manner; if they followed the

Golden Rule, then they were caring of the social order and this caring could be said to be mani-

fest by their presence on a jury; however, if they followed the Golden Rule, they could not judge

the defendant, much less sentence him to death, as they did.

. is disaggregation of the cumulative eects of violence on the defendant is very similarto what the defense argued in Powell et al.s criminal trial for the beating of Rodney King. See

Crenshaw and Peller (1993) for a good description of disaggregation.

. is was the rst woman that Wrest attacked he was 15 years old.

. e use of now and well familiarize the relationship between Sneddon and the jury, for

these are terms which signaled the telling of stories in informal, familial settings.

. See p. 1534 in People of the State of California vs. Wrest.

. e defense did try to construct an account of Wrest as intoxicated prior to the murders, viathe cross-examination of one witness (one of two such cross-examinations during the penalty

phase) he questioned a man who drank with Wrest early in the evening of the murders, im-

plying that Wrest had murdered because he had been drunk and therefore not in control of his

actions. But this was never more than an implication there was no explicit causal link made

between the drinking and the murders. As such, the moral depravity of the murders, established

by the prosecution, was not transformed.

. e Court allowed this video to be played, aer denying the defenses request to take the

jury to San Quentin to see the gas chamber rst-hand. With the jury in recess, the prosecutor

argues that the tape has no relevance, All those [surviving family members of the defendant]

people are dead. So what relevance does the tape have? To show what? To show that if Florence

was alive shed feel bad? Or if so, and she was alive, shed feel good? It has no relevance that


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Sara Cobb

told? e defense argues, following the storyline of the video, that death is harmful to those that

witness it, including but not limited to family members. e Judge argues that the relevance is

to show the nality of death and then explains to the defendant that it may not help his case:

All right. Mr. McNamara, let me tell you a little about this lm. Its an hour and a half long.

e defendant has been sentenced to death. It starts out with that. Hes been as the story

unfolds, hes been in the state reformatory early in his life. His sister doesnt like him. Hes

been involved in one robbery aer another. And the last robbery, which results in a death

sentence, he shot an unarmed 17-year-old person.

e defendant is survived by his mother, brother, sister, and mother. e victim is sur-

vived by a younger brother, father, and mother.e reason I have to tell you this is it focuses

upon the reactions of all of them. You have, under the circumstances of this case, the moth-

er, father are deceased, sister is deceased, niece is deceased. And there is a risk that the jury

will identify with the fact that there are no in your case, there are no survivors, save andexcept for your brother and that can come to thats stuck in my mind a couple of times

when I was watching it. I watched the whole thing yesterday.(11.2028, p. 7341) [And] if

they view the scene of the where the drugs are administered and the defendant dies right

in front of the screen its not a horrible death they may identify with you and reject the

death penalty for you. But I wanted to explain to you that there are some risks. Do you want

to see the picture before you make a decision (11.28, p. 7343).

What eect this videotape had on the jury I do not know; I can only assess its role as a contex-

tualizing narrative of death it stabilized the meaning of the defendants pending death, and as

such, contributed to the structural complexity of the defense narrative.. is misspelling was done by the Court Reporter.

. is attorneys style was quite belligerent, in my view: he referred to one of the witnesses

as an interloper because she had recommended life; he asked another witness who said that

executing Barry McNamara would be like killing a young child, Well, let me be blunt about

it. Where do you get ocoming in here giving a recommendation about details or life without

parole, talking about people being like a young child, when you dont know anything about Mr.

McNamara (11.1215, p. 7235). McKinley routinely moved to contextualize the stories the de-

fense launched by discrediting McGrath and/or his witnesses.

. I submit that any time a narrator oers a set of possible narratives, none of them are an-

chored structurally. ey continue to operate in the narrative structure as highly unstable sites.

. I can only make out three possibilities; it seems to me that McKinleys fourth possibility is

a repetition of the rst possibility. Furthermore, contrary to his summary in this passage that all

of these possibilities deal with money, one of them advances the idea that Barry killed his family

so he could stay in the house. If the house is equivalent to money, the prosecution should

have made that link more clearly. Finally, from a structural perspective, it would seem unwise to

oer a jury four (three) competing options that explain the murders. While all of them suppos-

edly deal with money, the multiplication of these scenarios could destabilize the very narrative

he is trying to advance if Barry killed for money, which of these scenarios best describes thatmorality? It would seem that the prosecution created the very uncertainty that would lead the


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. It could be argued that the video of the execution that was shown to the jury in the McNa-

mara case dramatically contributed to their adoption of the defense narrative and led to a life,

rather than a death sentence. But this article does not aspire to factor analysis; rather, the eort

in this article is to establish a relationship between characteristics of the narratives and the pen-alty imposed by the jury. In this case, the prosecution narrative was less valid that that of the

defense, independent of the video.

. See Amnesty Internationals documents on the arbitrariness of the death penalty at http://

www.amnestyusa.org/death-penalty/death-penalty-facts/death-penalty-and-arbitrariness/

page.do?id=1101083e.

. See also Fleury-Steiner (2002) as well as Baldus, Woodworth, Zuckerman & Weiner (1997

1998).

. e metaphor of winning is incompatible with the narrative paradigm because it con-strues narrative processes as zero-sum and they are not; Bateson (1988) argued that meaning is

analogic, not digital and as such, it can never notbe.e same is true of any given narrative it

may evolve but it does not disappear once germinated (see Watzlawick et al., 1967).

. I am referring to rules of evidence, for example.

. Addressing violence is something that is core to the practices of restorative justice, while

redressing violence is the goal of criminal law. It is beyond the scope of this paper, but it is

interesting to note, that redressing violence may involve the adoption of narratives of violence

that perpetuate violence, localizing responsibility and reducing complexity, whereas addressing

violence may lead to the creation of narratives that create descriptions of internalized responsi-

bility and reciprocal relationships. Both addressing and redressing violence narratives tame

violence, but the dierences in the nature of the narratives may be important to explore. is

paper only explores the redressing of violence through narrative.

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