CONCORD, N.H. (AP) – As the case against Michael Addison heads into its final phase, attorneys are still wrangling over what can be said during the sentencing hearing.

Addison, 28, was convicted last week of capital murder in the fatal shooting of Manchester Police Officer Michael Briggs in October 2006. On Monday, the jury determined Addison is eligible to receive the death penalty and on Friday, the jury will begin the final task of sentencing Addison to death or life in prison without the possibility of parole.

Both sides have filed last-minute motions, which legal experts say is a way to use the rules of evidence to bolster their cases. Suffolk University Law professor Jeffrey J. Pokorak said it’s the prosecution’s goal to make Addison seem horrible in the jurors’ eyes, while the defense will play to their humanity.

“How much can the defendant be vilified on the prosecution side and turned into an ‘other,’ and someone so far outside of the community that the jury feels comfortable saying they should be eliminated forever? … You are going to hear every negative thing they can find and muster and say about him,” said Pokorak.

“The defense is going to try to humanize the person as much as possible,” Pokorak said.

“Basically the argument in the punishment phase of a capital case comes down to the fact … that no one is as bad as the worst thing they ever did.”

Franklin Pierce Law Center professor Albert Scherr said the prosecution must persuade the jury to pick the harsher of two severe punishments.

“The jury has two choices. They can vote to execute Mr. Addison … or if they vote not to do that, they are essentially voting for a life in prison without any chance for parole sentence,” said Scherr. “What the prosecutor’s got to think (is) what is it about this case that’s not about emotion, that’s not about revenge, that, as a matter of reason and logic, requires that the jury to conclude beyond a reasonable doubt that he should be executed rather than put in prison for rest of his life.”

In a motion filed this week, the defense targeted potential testimony from those very close to Briggs, asking victim impact statements be limited to injury and harm caused to the Briggs family.

“(Victims) can testify about the harm to them and, in a death penalty case obviously, the effect on them by the death of the person. And also you can talk about who the victim was,” said Pokorak. “The fear about that stuff is that we would give the death penalty to people not because of what they did but because of who they happened to kill and that’s not a good way to run a criminal justice system.”

Pokorak said victims are not allowed to say what they think the punishment should be.

The prosecution is asking the judge to restrict Addison’s unsworn statement to the jury to his own feelings, not his feelings on other testimony or evidence.

Pokorak, who is personally opposed to the death penalty, said judges should err on the side of the defense in this area, especially if the defendant did not take the stand. Pokorak pointed to a U.S. Supreme Court decision on the issue where the dissenters worried that a jury could sentence a man to death without ever hearing the sound of his voice.

“That’s a very powerful idea, that the jurors want to hear from them,” said Pokorak. “What horrible harm can come from having someone say whatever they’re going to say?”

As of Tuesday afternoon, Judge Kathleen McGuire had yet to rule on either order.

Scherr said although the judge has some discretion as to what testimony is excluded, the state statute is very specific about how the jurors should go about making their decision.

“Though at one level the task the jury has is a profoundly emotional and moral one, the statute by design aims to make decision making process as rational and logical as possible,” said Scherr, not based on anger or a desire for revenge.

Once the hearing is under way, the state will present aggravating factors, which include Addison’s previous criminal record, the pain he caused Briggs’ family and the likelihood he will commit more crimes in prison.

The defense will counter with mitigating factors, such as Addison’s difficult childhood and his impaired brain function, as reasons to spare his life.

The jury must unanimously find beyond a reasonable doubt that the state proved the required number of aggravating factors and that the defense proved at least one mitigating factor. If the jury then finds the aggravating factors outweigh the mitigating factors, the jury can vote for the death penalty.

The jury always has the option of voting for life in prison.

AP-ES-11-18-08 1519EST

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