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Stabilizing violence
Structural complexity and moral transparency
in penalty phase narratives
Sara Cobb
George Mason University
Narratives matter. Tey shape the social world in which they circulate, refecting
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. Te 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 efort to structure jurors decisions. Tis 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. Tis research seeks to avoid
eforts 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 of narrative closure which is, in turn, defned 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 fndings 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 Confict Analy-
sis and Resolution, George Mason University, 3401 Fairfax Drive MSN 4D3, Arlington, VA.
22201. E-mail: scobb@gmu.edu
Stabilizing violence ip;
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 ofers 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.
Tese narrative accounts function to tame violence, making it sensible, even if
morally 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. Tese juridical processes refect 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 found Teodore Wrest guilty of frst 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
afer he had bought her a bottle of wine. Wrest stabbed Virginia Aceves 15 times
many of the wounds were in her hands, infected as she defended herself afer
she lef a funeral service commemorating the death of a friend. Wrest is on death
row in California.
On January 9, 1986, having found Barry McNamara guilt of frst degree mur-
der, the jury voted to sentence him to life imprisonment without the possibility
ip8 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 for
a 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 afer 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.
Te nature of the violence redressed in these two capital trials both demands
and defes 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 horrifc 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 and death are performative narra-
tive events that give meaning and stability to murder.
4
Tere 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). Tis 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, difering characters, and difering views of justice, or what
Labov (1997) calls the evaluative point. Te relative success or failure of the legal
narratives to stabilize the meaning of the murders may be indicative of the jurys
decision to fnd 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.
Tese 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. Te prosecution narrative has
an advantage as it is the frst narrative that is told in the trial, colonizing the narra-
tive space (Cobb & Rifin, 1991). However, it is also the case that the penalty phase
can contain new testimony as both the prosecution and defense present mitigat-
ing and aggravating evidence. Tus it would be important not to presume that
Stabilizing violence ipp
prosecution or the defense narrative, as unfolded in the guilt phase, would remain
unchanged in the penalty phase. Terefore, despite the fact that the guilt phase
narratives may be infuential re the penalty phase outcomes, those outcomes, the
fndings for life or death, need to be understood in relation to the penalty phase
narratives themselves.
Tere are two possible relationships between narrative and the outcome of the
penalty phase: (1) the jury fnds for life imprisonment as a narrative enactment of
the defenses story; or (2) the jury fnds 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, efectively humanizing the defen-
dant (Haney, 2008). Te 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. Te 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 diferent from the jurors, he is easily demonized (Haney, 2008,
p. 879).
However, at times this violence is so extreme, so inhuman that it is dimcult to
create even a demonization of the defendant that balances or fts 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 ftting the cause or because of the issues
surrounding the process of witnessing violence, for building a story of sufering 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 qualifed 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 adequately fll in the la-
cuna, the violence can overwhelm the narrative and remain outlaw, outside of law,
such as in cases where victims are killed and then eaten, for example. When this is
the case, the jury would, theoretically, choose the death sentence, as the exclusion
oo Sara Cobb
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. Te assumption here is that the jury could elaborate the defense
narrative and fnd for life in prison without parole or they could elaborate the
prosecution narrative, and fnd for the death penalty. To examine the relation be-
tween narrative and penalty phase outcomes, I ofer a new method for the assess-
ment of narrative closure, as a method for examining the relation between the pen-
alty phase narrative and penalty phase outcomes. Te 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,
specifcally, and more broadly of the way that narrative contains violence.
Tese 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 penalty
phase 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 feld (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. Te fndings here are not intended to prove 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 om-
cial story
8
law provides us about penalty phase processes.
9
Currently, research on
mitigation in capital trials moves in two diametrically opposed directions: Bentele
and Bowers (2001) note that jurors all too ofen make their sentencing decisions
in the guilt rather than in the sentencing phase of capital trials. Tis would mean
Stabilizing violence o
that the penalty phase narratives have little to do with the sentences of either life
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. Tis 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. Tis 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 specifcally 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 Teory, 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.
11
Tis formulation of the language/power relation not only dissolves
the representational view of discourse, it also dissolves the Cartesian distinction
between talk and action talk is 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 refexively, who can participate, as well as the nature of their participation.
Te roles assigned through the enactment of narrative (discourse) impact who/
what is legitimate and who/what is not. From this perspective, the narratives in the
penalty phase constitute the legitimacy/de-legitimacy of the defendant, the crime,
oi Sara Cobb
and all the characters involved. Narrative validity is thus not a 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. Te 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. Tus, 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. Te 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.
12
Tis power
13
is, in turn, dependent on the
coherence of the narrative. Coherence is a narrative property
14
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, character
roles, 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). Te more unifed the narrative, the more closure
it exhibits that is, it is better able to stave of the 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 solidifes 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. Te more events in a horizontal narrative line,
the more complex the story. Te 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,
providing a context in which to understand or make sense of that episode. Tey
are subplots, developed during the course of interaction; they are layered onto a
Stabilizing violence o
main plot line by speakers to either stabilize or destabilize the meaning of the main
plot line. Tey 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. Tis 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.
Te penalty phase is the penultimate efort to contextualize the events in the
main plot line, established in the trial itself. Te 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 meaning of 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 way
to stabilize violence that defes narrative itself).
In turn, the evaluative point, the judgment, refects either legitimacy or dele-
gitimacy on the central character, the defendant. Legitimacy, or its opposite, is,
Figure 1.
o Sara Cobb
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 in
relation 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
defne 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.
19
Te 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 of alternative narratives; they set the discursive grounds on
which the contestation and dissensus must be established, stabilizing the meaning
of violence.
Te 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 of fnancial 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). Trough this cross-examination, the prosecutor worked
to destabilize both the intra-narrative coherence of individuals narratives as well
as the inter-narrative coherence across multiple narratives, opening the main de-
fense narrative to alternative narratives. Summarizing the prosecutor narrative:
Stabilizing violence o,
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. Te 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. Te need for money, which requires
instrumental calculation, does not ft 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 ft of anger, but there are no contextualizing narratives that
provided an example or a history of this kind of anger.
20
Furthermore, the ft of
anger contextualizing narrative does nor resonate with the evaluative point either
killing for money, as a narrative, implies calculation and rationality, not a ft of
anger. Tus 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. Te 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
refexively related to the explicitness of positive and negative value attached to
character roles. Te 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
morality plays, the moral order they invoke will typically be mainstream cultural
moralities drawn from and played back to the larger social order (Fleury-Steiner,
oo Sara Cobb
2002). Mainstream moral orders are refections, 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 already legitimized in the culture and,
precisely because they have the weight of the culture behind them, they are more
dimcult 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
fows from Te 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 freplace
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 suferedso 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 morality fows from the Golden Rule which constructs Wrest as immoral.
Tis morality is exceedingly culturally rooted and is, consequently, very dimcult 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
Tis 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. Te 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 fnds and accents: what is the explicit connec-
tion between a bad childhood and stabbing a woman 15 times?
23
Te prosecutor
argues that many people have sad childhoods and dimculties and do not grow
into murderers. Te dissolution, by the prosecutor, of the moral order advanced in
the defense narrative was apparently efective; the jury enacted the Golden Rule
narrative (ironically!). Te defense had failed to ofer a transparent moral order
that could function to clearly demarcate right from wrong; morally, the narrative
was obtuse.
Stabilizing violence o;
Penalty phase narrative assessment
I have suggested that there are two variables that contribute to the validity and
stability of penalty phase narratives: structural complexity and moral transpar-
ency. Te 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).
Figure 2.
In the sections that follow, I ofer 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 of 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 complexity
is 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. Afer 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 reveal
a portrait of a man whose relatively short life has been basically characterized by
the totally devastating nature of violence associated with those crimes (11.1421,
p. 1145).
o8 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 attacked
on 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, increasing the structural complexity.
For example, in Sneddons frst 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 freplace 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 outft, 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 frst 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 fve-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 when
she 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 lef hand. She didnt realize in the beginning that the knife had actu-
ally been up there with the shovel. She recognized the knife. Te 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 fst and punched him on the nose. She
thinks she broke his nose, because blood splattered all over the room. From the
pain, 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
door (11.328, p. 1147; and 11.116, p. 1148).
Stabilizing violence op
Tis 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 women
randomly, 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. Te 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 was nally 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 Wrests
life that was exceedingly dimcult to destabilize, a story that required completion
through Wrests own death.
Te 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 testifes 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 snifed lighter fuid
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
special place in our hearts for children, and it would be dimcult to argue with that.
o 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. Te 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 gifs, greater gifs, 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.
Tere 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. Tank 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 Cannon
himself 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).
Ten Cannon proceeds to ofer two contextualizing narratives that explain why
Wrest was diferent 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
of the specter of the violence Shannon Altons story about being tied up and
Stabilizing violence
raped in her closet foats disconnected, unexplained; a bad childhood may lead to
violence but does it cause the specifc acts telescoped in the prosecutions presen-
tation of the violence? For example, afer Wrest raped Mrs. Alton, he withdrew
his 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.
Te defense narrative is also morally obtuse there is no morality ofered 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 diferentiates 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 work
of 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). Te 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). Te 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 committed
these crimes (11.1820, p. 7174). Tis legal narrative and its categories provided
a framework that McGrath used to structure the presentation of his case: (1) he
organized these schemes temporally (character, the absence of a felony record
i 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 factors
central to the judges instructions. Te 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, fnishing 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. Ten in his closing statement, McGrath told several stories which
contextualized both the life and the death options: afer 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 they fnd 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 of his
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 signifcant of these narratives which contextualized life
and death was a fctionalized 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, sufered by the death of the defendant; the tape thus suggests that execution
does not bring peace to the people involved. Tis narrative destabilizes the role
of death-as-completion, contextualizing the execution as widening the circles of
sufering.
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. Tis 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 their
opinion regarding the appropriate penalty and then asks them why; witnesses
told stories about Barrys good character/mental illness, asked for his life because
he needs understanding and deserved mercy, not death. Te moral imperative is
Stabilizing violence
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 Cain
and 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 Cane
29
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 sumcient 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).
Trough 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

Ten 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? Tats
one possibility.
Whats the second? Tere was a fght or argument. Something happened.
Tey 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 of fve, six, seven, eight, nine,
ten things. Barry asked them to give him some money for gas and the Dad fnally
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 fght occurred be-
tween Al, how does that explain killing the other three people? It doesntexcept
that theyre witnesses, okay?
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 fnally 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) and
hopes to use it to install money as a motive for murder. However, not only do these
four possibilities fail to anchor themselves because, by defnition, 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 testifed 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.
McKinley fnished 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? Te violence McKinley
describes is so vivid (McNamara had his fathers brain matter dried on his hat
when he was arrested) that it defes the logical causal arrangement that McKinley
ofers 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, it
was a container that invoked connection, care, community, and life.
33
Stabilizing violence ,
Conclusion
As both NGOs such as Amnesty International
34
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 scafold on which the penalty itself devel-
ops (Jackson, 1988). And this structure, constituted through narrative, colonizes
the discursive feld, not by besting alternative stories, for this is not a game of
English cricket;
36
it grows, solidifes 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 themes
that represent violence. Te 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 ofered 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.
o Sara Cobb
Acknowledgements
I would like to acknowledge the contribution of Karine Bohbot; as my Research Assistant she
helped map out the narrative structure of People 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. Te penalty phase in this case was not preceded by the
guilty phase because, as the jury was being picked, this (white) defendant pled guilty to two
counts of frst-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 testifes that she was tied up and raped.
Tere is one witness for the defense and there are 17 witnesses for the prosecution.
i. 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 of frst-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 book Violence
and the Dierence. In this section, he acknowledges the power of the victims body to compel
our attention, our involvement and yet our eforts 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. Te imperial mode reduces and distills the local, communal values
that 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 to
outlaw. He notes that the hunger strikes by the prisoners in Northern Ireland were discursive
moves to resist their narration as criminals and promote the story of their national political
victimization.
Stabilizing violence ;
o. 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 Jackson
goes on to argue, quite efectively, that there are multiple narratives operating at diferent 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. Tis, for me, is a way of mapping the penalty onto the legal process as
a narrative enactment.
8. See Sarat and Kearns (1993) A Journey Trough Forgetting: Towards a Jurisprudence of
Violence in their book e Fate of Law. In this article, they map out laws construction of its
omcial story regarding its relation to violence.
p. Outcome studies of criminal legal processes have largely focused on jury composition and
jury process. Simulated juries have been used to provide information regarding jury processes,
i.e., confict 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. Te 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.
o. 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. Te former,
Jackson notes, leads Bennett and Feldman toward a distinction between story and evidence (the
evidence 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: Te
Narrative Model of Fact Construction in the Trial: Semiotics and Social Psychology, particu-
larly pp. 6176.
. Te 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 very
helpful; see Bumiller (1992), Goodrich (1987), and Sarat and Kearns (1993). Also see some of
the feminist legal scholarship, such as Fineman (1987).
8 Sara Cobb
i. See Cobb (2006, 2008) for research on confict 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 conficts. See Nelson (2001) for a theory of how narrative damages
identity and colonizes consciousness. Finally, see Mumby (1993) for several good papers on the
power of narrative.
. Many have made the point that power all too ofen 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-defnitions 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 fnd 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 ft 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.
o. Tis 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.
;. Te 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 ofered 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-
fed 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). Te prosecution did not tell an opening narrative in the McNamara case.
8. See Cobb (1994) for an analysis of the social construction of intentions.
p. 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.
Stabilizing violence p
io. Te 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 backfred, 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.
i. 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. Te 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 narrated
form 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.
ii. 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.
i. Tis disaggregation of the cumulative efects of violence on the defendant is very similar
to 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.
i. Tis was the frst woman that Wrest attacked he was 15 years old.
i,. Te 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.
io. See p. 1534 in People of the State of California vs. Wrest.
i;. Te defense did try to construct an account of Wrest as intoxicated prior to the murders, via
the 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.
i8. Te Court allowed this video to be played, afer denying the defenses request to take the
jury to San Quentin to see the gas chamber frst-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
anyone can put their fnger on (11.59, p. 7340). McKinley is clearly requesting/demanding
information about how the tape will be used where will it ft in the structure of the stories
io Sara Cobb
told? Te defense argues, following the storyline of the video, that death is harmful to those that
witness it, including but not limited to family members. Te Judge argues that the relevance is
to show the fnality 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 flm. Its an hour and a half long.
Te 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 afer another. And the last robbery, which results in a death
sentence, he shot an unarmed 17-year-old person.
Te defendant is survived by his mother, brother, sister, and mother. Te victim is sur-
vived by a younger brother, father, and mother. Te 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 and
except 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 efect 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.
ip. Tis misspelling was done by the Court Reporter.
o. Tis 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 of coming 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 ofers a set of possible narratives, none of them are an-
chored structurally. Tey continue to operate in the narrative structure as highly unstable sites.
i. I can only make out three possibilities; it seems to me that McKinleys fourth possibility is
a repetition of the frst 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
ofer 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 that
morality? It would seem that the prosecution created the very uncertainty that would lead the
jury to question the moral frame the prosecutor is advancing.
Stabilizing violence i
. 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 efort
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).
o. Te 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 not be. Te 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.
8. 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 diferences in the nature of the narratives may be important to explore. Tis
paper only explores the redressing of violence through narrative.
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