Last month, we explored some of the mental health evidence likely to be raised at the California trial and possible sentencing hearing of Buford Furrow. He is accused of killing an Asian postman and spraying a Jewish community center with gunfire, reportedly targeting minorities. Suppose you were a defense attorney or a prosecutor involved in a case like this? The Forensic Panel Letter assembled several prosecutors and defense attorneys to share their experiences and advice.

JA: James H. Anderson, Prosecutor, Alameda County, CA

DB: Douglas C. Brown, Defense Attorney, San Diego, CA

JC: John G. Cotsirilos, Defense Attorney, San Diego, CA

WE: William D. Evans, Defense Attorney, Long Beach, CA

TK: Thomas Kapsak, Prosecutor, Middlesex, NJ

CK: Chandra Kessler, Prosecutor, San Diego County, CA

DL: Daniel Lamborn, Prosecutor, San Diego County, CA

TFPL: What would you look for in a jury on this case?

DL: Parents. People who can relate to being victims of racial or religious intolerance.

CK: Absolutely, I would choose parents. Postal workers or any other kind of worker that works in view of the public. People who are victims or know victims of violence.

JC: One would have to confront each individual juror with all the dynamics of the case and attempt to get a feel if a juror had an open mind toward a life sentence. The best method of jury selection in a case this charged may be the least information possible so, one hopes, the prosecution makes a mistake and leaves someone on the jury who may be against the death penalty.

JA: I would fully voir dire each potential juror as to their beliefs as to one's responsibility for his own actions.

TK: Someone with a strong educational background in sociology, psychiatry, or psychology should be eliminated. I would listen closely to potential jurors views on religion and government.

WE: I would prefer as jurors single men between 30 and 55 years of age without children, preferably with northern European or Scandinavian background; professionals, such as bankers, businessmen—anyone who would be likely to consider intelligently an insanity defense and/or scientific evidence offered in mitigation.

TK: I always look for intelligent jurors who have a stake in society, who own homes, have mortgages.

Be very careful about "enlightened" people who attended northeastern colleges. I even like to ask what bumper stickers they have on their vehicles.

JA: I also avoid those who feel that a sentence of life without possibility of parole can somehow serve the common good in that a defendant can somehow reform himself, and become a productive citizen in the prison system. Still, a potential juror might qualify as a "death qualified' juror, when in reality, he could no more execute someone than could Mother Teresa!

TFPL: What's likely to have an impact on the insanity defense?

JC: There is an advantage to raising the insanity defense at trial prior to a penalty phase. If the insanity issue is truly disputed, and the jurors genuinely debate it, even though they may find the client, sane, it may lead to a compromise and a life verdict in the penalty phase.

DB: The entire trial needs to be viewed as one proceeding in order to avoid a capital phase that is wholly inconsistent with the guilt phase. The "I didn't do it, but if I did don't execute me approach leaves the defense with little credibility at the penalty phase.

DL: The target of the defendant's rage would concern me from an insanity defense standpoint. Targeting innocent children is something so inconceivable to any rational person, that a jury might say, ipso facto, the defendant must he crazy.

TK: I would be concerned whether his religious beliefs go beyond bizarre zealotry and into psychotic obsession.

CK: I would be concerned that lay people would confuse the legal definition of insanity with the commonly used term of "crazy." Using Hitler as an example, from a clinical standpoint he would not be diagnosed as insane, yet most people would agree that his conduct and viewpoints were as crazy as they come.

DL: I would argue his rejection of the efforts to help him in the past. Plus, I would point out the difference between having psychiatric problems and simply being evil.

TK: He attempted to have himself committed to a hospital and they sent him to jail instead. Could this have exacerbated his mental state and pushed him towards killing Jews or government representatives?

DB: Minimizing the perception of Furrow as a hate monger would require a factual demonstration that his proclivities were 1) related to mental illness, 2) were only briefly established, or 3) were the result of some credible personal traumatic event, such as a crime or sexual abuse that led him down the racist path.

CK: I would have a psychiatrist re-examine the record, and I would ask the psychiatrist about the multitude of other patients with similar backgrounds that do not go out and kill people. I would also point out the differences between the killing of the postal worker and those at the Jewish Community Center to show that this man is simply motivated to kill.

TFPL: What would make you especially confident about getting a jury to return a death sentence?

DL: The random selection of victims is so terrifying to most people, a jury might be inclined to return a verdict of death

DB: These kinds of aspects often are linked to testimony about future dangerousness. Future dangerousness is a fairly speculative endeavor and can usually only be rebutted with either psychiatric testimony or by undermining the factual basis for the claim of future dangerousness.

JC: The best way to counter aggravators regarding future dangerousness, if the evidence is available, is testimony about positive adjustment in an incarcerated setting.

CK: The vulnerability of victims is an aggravating factor. The postal worker was walking around just doing his job. He wasn't a threat to the defendant. And what's more vulnerable than a child at play? Juries become outraged at the targeting of children.

DL: Jurors would find the idea of persons attacked for no other reason than the color of their skin or religious views unconscionable.

JC: The biggest aggravator besides the racism has to be the victim impact testimony. It will be devastating in this case.

DB: Another aggravator besides bias or hate crime would be a prior record of violent felonies or substantial acts of moral turpitude.

TFPL: What are the strongest potential mitigators you can think of here?

TK: He will be credited for turning himself in. A wise defense strategy would attack "the system" for not helping Buford Furrow when he needed it.

JC: In the sentencing phase, the most effective manner to establish that a client could not conform his conduct on was acting under an extreme emotional disturbance can be through additional lay witnesses, who could give anecdotal input regarding bizarre or unstable behavior. Additional expert testimony may not be effective if expert testimony was rejected in the sanity phase leading up to the penalty phase.

TK: Psychosocial history is often presented by a "mitigation expert' almost always a woman on the verge of tears, who makes a substantial income by testifying about the agonizingly abusive, love-starved childhood suffered by the defendant. Cross-examination of this witness is often difficult because all of her information is second hand.

JA: Generally, the three pet mitigators are child abuse, drug abuse, and mental problems. I would counter child abuse claims with the "parallel lives" distinction if he has siblings. I would try to show that they grew up in similar circumstances and did not commit such crimes. The drugs defense doesn't play well, because coke, speed, heroin, etc. don't evoke the same reactions, because the crimes completed usually involve some goal-oriented activity, diminishing the "I'm out of my mind" claim. Mental problems don't play well either, when these illnesses seem to occur after the defendant has committed the crimes that led to his arrest.

TK: Thorough preparation is the only way to deal with the defendant's mitigation defense of psychosocial history. I try to elicit mental history information early in the investigation from the family. If appropriate, I call close relatives before the Grand Jury to make a record under oath before the defense team prepares an insanity defense strategy.

JC: The best testimony, especially oriented toward the hate and racist angles of this case, would be witnesses remembrances about the defendant's kindnesses or good acts he had performed for specific individuals.