Death Penalty Mitigation: Humanizing the Hatred - National Association for Public Defense

Humanizing a seeming monster isn’t easy. It cannot be accomplished simply by attempting to weigh the good acts or the bad childhood actions of the accused against the horror of their crime. When you try that, you slip perilously close to an “eye for an eye”.

In death penalty cases, you have to focus entirely on the person the State is talking about killing whether it makes sense; or whether it makes us safer; or whether it makes us a stronger society, to put them to death. Humanizing the hated is an extremely difficult road for the defense attorney because it is hard for the public, who are fed on sound bites of grotesquery, to grasp the importance of respecting people who do terrible things.
As the process of humanizing the “worst of the worst” unfolds, the defense attorney must first embrace the course of events and acknowledge the tragedy that brought your client to court in the first place, and remain ever cognizant of the survivors that are left behind.

One of the key differences in capital case preparation is the collection of reliable, objective documentation about the client’s life history. The surest way of not receiving a death sentence is to persuade the prosecuting attorney from initially not seeking a special sentencing proceeding. The most persuasive manner in obtaining this objective is to present a thorough, thoughtful, and competent mitigation packet to the prosecuting attorney.

From the moment we are appointed to the client’s case, capital defense counsel are required to assign, to hire, or have appointed, a competent defense team. Defense counsel bears the ultimate responsibility for the performance of the defense team and for decisions affecting the client and the case. It is the duty of counsel to lead the team in conducting an exhaustive investigation into the life history and factual circumstances of the client’s case.

In Washington State for example, Superior Court Special Proceedings Rules (SPRC-2: The Appointment of Counsel) require that at least two lawyers who have met the requirements of proficiency and experience, and who have demonstrated that they are learned in the law of capital punishment by virtue of their training or experience are exclusively qualified for appointment in death penalty trials. This is a rule that, sadly, many States do not have but that the courts and defense should strictly countenance.

In addition, at least one social worker, a mitigation specialist, and an investigator are, at the very least, required to be assigned to the case. Additional experts with special training in areas that are case-specific include, but not limited to: forensic medicine/pathology, DNA, forensic psychology, forensic psychiatry, pharmacology, neuropsychology, race and/or cultural issues, substance abuse, trauma, institutional life, toxicologists, to name a few.

At least one member of the team needs to have specialized training in identifying, documenting and interpreting symptoms of mental and behavioral impairment, cognitive deficits, mental illness and developmental disabilities because these will be factors, in one form or another, that will be present in almost every single case.

Once an attorney receives a capital case, a major component that the attorney must start thinking about is the collection of mitigation evidence. A number of defense attorneys minimize the importance of collecting mitigation evidence early in their representation. This is a significant mistake.

There is nothing more important than the collection of as much mitigation evidence to begin as soon as possible. The collection of mitigation evidence can be established through extensive interviews and record searches. Because the collection of mitigation evidence is both time consuming and require special knowledge and expertise, the attorney must seek to retain an experienced mitigation specialist to join the defense team.

The American Bar Association (ABA) Guidelines provide that a mitigation specialist is a necessary requirement to meet the standard of care for capital cases. (ABA Guidelines 4.1(A)(1).   In order for counsel to be effective we must utilize the assistance of a mitigation specialist. The ABA guidelines further state that the collection of mitigation records is not just a ministerial job. The collection of mitigation records does in fact involve specialized knowledge.

To begin with, mitigation specialists are social scientists with training and experience in the forensic application of social science theory. They are investigators with special knowledge and experience in the human sciences and mental health issues. They are professionals with expertise in identifying, analyzing, interpreting, and incorporating relevant mitigation evidence into the theory of the case. They help attorneys to understand the defendant in the context of the factors that lead up to the offense.

As a general rule, the chief difference between an investigator who does not specialize in mitigation and a mitigation specialist lies in the strong clinical and/or mental health background possessed by most mitigation specialists. A mitigation specialist is trained to know the significance of the contents of most mental health and medical records or how this information may be relevant to a competent theory of mitigation.

The scope of the role that a mitigation specialist may serve in a capital case varies.   Some mitigation specialists personally, or with their staff, conduct social history research which they present at trial in their capacity as expert witnesses. Other mitigation specialists function only as confidential consultants to defense attorneys, reviewing materials gathered by investigators, other defense team members and experts, and offering opinions about what and how mitigation should be presented at trial or in other proceedings.

Mitigation specialists often generate documents and visual aids that depict the client’s life and identify important patterns of thought and behavior, including the client’s life history chronologies, annotated genealogies, time lines, and frequency charts.

Additionally, analysis of the life history evidence enables mitigation specialists to make recommendations about the need for other experts, such as psychologists, neuropsychologist, psychiatrists, neurologists, pharmacologists, or special education experts. As they have extensive knowledge about the defendant’s life and often have developed a good rapport with the client.

Mitigation specialists are also called upon to assist other types of experts in conducting evaluations and to confer with experts and attorneys about the implication of test results within the context of the client’s experiences.

COLLECTION OF MITIGATION EVIDENCE

The collection of mitigation evidence necessary for a proper and thorough mitigation packet will be voluminous. It is, in effect, a collection of the client and his or her family’s entire life history. This evidence should consist of the client’s entire background, including, but not limited to: education, social, medical, and mental health. Get everything. What may appear to be insignificant or irrelevant may be relevant or direct you to something of more significance.

RECORDS:

To the extent possible, record gathering should be accomplished confidentially. Subpoenas duces tecum or court-ordered subpoenas should be used when it is clear their use becomes necessary.   Otherwise, records should be obtained utilizing signed, broad authorizations for the release of confidential information and records.

Letters should accompany the releases reminding the record keeper of all privileges held by the client. Out-of-State records may be difficult to obtain, so seeking assistance from attorneys in the other State(s) may be helpful.

Birth records: Should be obtained for the client, siblings, parents, grandparents, children, spouses, and significant others. If the client was adopted, it is necessary to obtain two sets of documents: biological family and adoptive family.
Medical Records: Complete medical records should be obtained for all family members from infancy to adulthood. Identify family physicians, hospitals, public clinics, and every care-providing facility in the communities where the client’s family ever lived. Emergency room records are particularly important to document trauma, abuse, and battering.
Mental Health Records: These records should include psychiatric facilities and clinics.
School Records: Transcripts, counseling, psychological evaluations, or standardized testing should be sought. Records relating to learning disabilities and Special Education classes may be kept separately. GED programs should be researched as well.
Marriage/Divorce Records:
Death Certificates: These are generally available from the Dept. of Vital Statistics in each state and do not require authorization. Death certificates will identify additional records to pursue, such as autopsy records of sudden or violent deaths.
Juvenile Court Records: Generally require court order, but will usually be granted with appropriate authorization.
Employment Records: Tests, evaluations, citations, workers compensation and pay scale information.
Military Records: Medical, psychological and training records.
Social Service Records: Food stamps, social security and welfare records.
Lawsuits/involuntary commitment records
Criminal-Background Records: Criminal histories, probation records.

INTERVIEWS:

In conjunction with the collection of records, the mitigation evidence has to include interviews with those individuals that had contact with, directly or indirectly, with the client. This includes any family member, friends, teachers, co-workers, doctors, military members, etc.

LENGTH OF TIME REQUIRED TO CONDUCT MITIGATION INVESTIGATION:

The length of time necessary to conduct the proper mitigation investigation must be taken into account when extend the 30-day notice. Generally, there is no disadvantage to seek as many, and as long, of a continuance to prepare a thorough mitigation packet. Certainly the prosecutor, and maybe the court, may become frustrated with the number of continuances, but the defense should rely on the ineffective assistance of counsel claims and supporting case law to persuade the court for the necessity of the continuance.

FACTORS DICTATING LENGTH OF NECESSARY TIME:

Client trust: Clearly, the client is one of the most valuable and important sources of information. However, without first obtaining client trust, the nature of the information becomes much more attenuated. All members of the defense team need to spend time with the client in the hopes of building that trust and rapport.
Client impairments: In most capital cases, the client suffers from a combination of mental illness, organic brain damage, illness, psychiatric diseases, thus making it difficult for the client to understand, acknowledge, or appreciate the request for information (i.e. releases).
Nature of the Information Sought: As the mitigation investigation progresses, it becomes necessary to delve into sensitive and intimate areas, which are often frightening and/or humiliating to the client. Such topics may include sexual abuse, physical abuse, mental abuse, mental illnesses, drug abuse, which need time and patience from the defense team to work through these sensitive areas.
Three Generations Must Be Investigated: In order to understand the client’s social, mental and other makeup factors, it is necessary to investigate other relatives, such as siblings, cousins, aunts, uncles and grandparents.
Locating Lay Witnesses: Numerous individuals much be interviewed when seeking to gather information about the client’s life. These witnesses are often difficult to reach because they are transient, moved, or have access to other phones. Locating lay witnesses often requires traveling to other counties, cities or states.
Gaining Lay Witness Trust: Upon locating the lay witnesses, it is necessary and often difficult to obtain the information needed. Time must be spent to establish a trust, which often takes time demonstrating commitment to save the client’s life. Ironically, the greatest hurdle is to explain to the lay witnesses what they may think is “bad” about the client, may in fact be the most helpful pieces of information.
Impairment of Lay Witnesses: Many of the client’s lay witnesses may suffer from similar impairments, which require time and patience to work through when obtaining necessary information.

Integrating Data: The information, which is extensive and voluminous, and it must be integrated in such a way as to explain the mitigating evidence. It is not just enough to explain “why” the offense occurred, but also why other members of your client’s family, with similar impairments and background, did not kill anyone.

The collection of mitigation evidence is time consuming, specialized and necessary. A mitigation specialist is an expert in the area of accumulating, collecting, and assessing mitigation evidence and no capital case representation should be started until such an expert is retained. Case law, not to mention the client’s life, requires the investigation into mitigation evidence. Defense counsel should seek expert funding for a mitigation specialist and seek the necessary continuances/extensions until the mitigation evidence collection has been exhausted.

Lastly, there is an important point that needs to be made when handling a multitude of experts and other members of your defense team. As lead attorney, you will need to discover for yourself how well you need to navigate through strong personalities, differing perspectives and time constraints that all need to be accommodated in order to get the tasks completed.

Building and leading an organizational culture around a successful defense team concept is considered critical in leadership competency and success. The challenges that you will face with every capital case team is to make sure that your team collaborates closely together to achieve the necessary results for your client. Find any reasonable method to make sure you find a way to work effectively, across the board, to accomplish your specific tasks and your objectives quickly and not allow yourself to get bogged down in personal idiosyncrasies or ego-invested biases. Your success will be based on this collaborative effort.