Mitigation Evidence in Death Penalty Cases

The paradox of death penalty litigation is that no case is hopeless, but there is also no guarantee of success —— that is, avoiding a death sentence —— when a case enters a sentencing proceeding. That no case is hopeless is brought home not only by the results in high-profile cases such as Susan Smith, Terry Nichols, and Ted Kaczynski,¹ but also in the uncelebrated examples throughout America's 40 jurisdictions with capital punishment statutes, as death-qualified juries find it in their hearts to choose life sentences for serial killers, cop killers, child killers, and others among our most reviled clients. That there is no magic formula guaranteeing success at trial is equally apparent to capital practitioners. Every case is different, every individual biography is unique, and mitigation evidence is as infinitely varied as humanity itself. There is no measure of mitigation evidence to tell us when we have found enough in any given case.

Eighth Amendment jurisprudence over the past two decades has distinguished between the "eligibility" phase of capital cases, (i.e. which classes of murders are "eligible" for the death penalty), where the post-Furman jury's discretion must be channeled and limited to "ensure that the death penalty is a proportionate punishment and therefore not arbitrary or capricious in its imposition," and the "selection" phase, (i.e. which defendants will be sentenced to death), where the United States Supreme Court requires "a broad inquiry into all relevant mitigating evidence to allow an individualized determination."²

The breadth of mitigating evidence has been clear since the Supreme Court first established that individualized sentencing is a constitutional requirement when the punishment is death. In Woodson v. North Carolina,³ the Court held:

Two years later, Sandra Lockett challenged the constitutionality of the Ohio capital statute, claiming it did not allow the sentencing judge to consider as mitigating factors her character, prior record, age, lack of specific intent to cause death, and relatively minor role in the crime. In Lockett v. Ohio,⁵ the Court concluded that the Eighth and Fourteenth Amendments require that the sentencer "not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death."⁶

When a trial court in Oklahoma refused to consider as a matter of law a teenager's emotional disturbance and turbulent family history because these factors "did not tend to provide a legal excuse" from criminal responsibility, the Court made clear that mitigation in penalty is something different, stating:

The opinion is eloquent in distinguishing responsibility from punishment considerations:

Mitigating evidence cannot be limited to the pre-offense time frame. It can embrace redemption and post-offense "good adjustment" in jail. In Skipper v. South Carolina,⁹ the Court held that the defense should have been permitted to introduce such evidence even though it "would not relate specifically to petitioner's culpability for the crime he committed" because "there is no question but that such inferences would be 'mitigating' in the sense that they might serve as a basis for a sentence less than death."¹⁰

Justice O'Connor went on in Penry v. Lynaugh,¹¹ to re-affirm succinctly "the principle that punishment should be directly related to the personal culpability of the criminal defendant,"¹² in capital cases. She stated, "Rather than creating a risk of an unguided emotional response, full consideration of evidence that mitigates against the death penalty is essential if the jury is to give a 'reasoned moral response to the defendant's background, character, and crime.'"¹³

Professor Joan W. Howarth has developed this analysis of the reasoned moral response in her study of the role of gender in capital juries.¹⁴ She has stressed the need for personalized responsibility and individualized, contextualized decision-making in sentencing determinations. Professor Howarth has contrasted the jury's fact-finding role in guilt trials, based on the traditional ethic of justice, with its moral role in penalty trials, based on an ethic of caring, compassion, and mercy. She finds a hidden battleground of gender in capital juries —— pitting rational versus irrational, active versus passive, thought versus feeling, objective versus subjective, abstract versus contextualized, distance versus connection, rules versus context, anger versus pity. Perhaps the most fundamental point is that there is simply no objective test, no rule to measure mitigation, no scale to quantify empathy-evoking evidence.

Even in our harsh era of punishment inflation, where the death penalty is politically untouchable in election campaigns, mitigation continues to matter to capital juries. The challenge in death penalty litigation is to get beyond the derisive labels (e.g., Professor Alan Dershowitz's "abuse excuse") in order to show juries that we are not offering excuses and to arouse their compassion by telling each client's unique human story.

Investigating these life stories requires an extraordinary level of trust between the capital defense team¹⁵ and the client. Mitigation investigation invades the darkest, most shameful secrets of the client's family, exposes raw nerves, re-traumatizes, scratches at the scars nearest the client's heart. It is also cyclical, rather than linear, because the most intimate witnesses —— family members and loved ones —— will often oscillate between denial and disclosure as painful truths slowly unfold.¹⁶

Our Clients
Differences between capital defense counsel and clients may create barriers to disclosure of sensitive life-history information. These differences often begin with race and culture. As of April 1, 1998, the total number of prisoners under sentence of death in the United States was 3387, according to figures compiled by the NAACP Legal Defense Fund.¹⁷ Nearly all were men (3344 or 98.73 percent). Twenty-one inmates were of unknown race. Of the rest, 1611 (47.56 percent) were white; 1420 were black (41.93 percent); 265 were Latino/Latina; 45 were Native American; and 25 were Asian.

Other barriers between clients and counsel typically include nationality,¹⁸ ethnicity, language, class, education, age, religion, politics, social values, gender, and sexual orientation. Overcoming these barriers will often mean involving someone in the defense team with whom the client will feel more at ease.

Other demographic information is much less clear because confidentiality issues preclude study.

But all clients are poor.

Many have multi-generational history of mental illness, such as schizophrenia, bipolar disorder, and depression. Mental health issues pervade capital cases. Psychological and psychiatric disorders are no less real than biological disorders, and they often lurk undiagnosed even among clients who have been subjected to superficial, so-called "drive-by" evaluations in past encounters with the authorities.

The key to reliable assessments is social history investigation, the meticulous biographical inquiry aimed at understanding who the client is and what in his or her background will help to explain what happened in the alleged capital crime. Investigation focuses on a range of issues, including genetic predispositions, manifested in medical histories of parents and grandparents; family histories (including mental illness and/or retardation of caretakers; abuse, maltreatment, abandonment; neglect: malnutrition, anemia, poor hygiene, poor medical/dental care, premature sexualization; instability: divorce, intermittent parents, adoption, foster placements; substance abuse and/or criminal activity among caretakers; domestic violence: physical, sexual, psychological; tragedy: natural disaster, death of family members; and detailed personal histories (including exposure to violence and trauma, recklessness [accidents, injury], truancy, running away, depression, sexual disorders, sleep disorders, substance use/abuse, prescribed medications, school performance/adjustment, psychological testing, evaluations, therapy, etc.).

Many clients have suicidal histories —— often undiagnosed —— or histories of self-destructive behaviors.¹⁹

Many have learning disabilities and other cognitive impairments —— also often undetected and even masked by the clients' coping strategies.

Many clients are illiterate.

Many have organically based neurological deficits —— ranging from seizure disorder to the organic consequences of intrauterine exposure to neurotoxins or head injuries. Their brains do not work properly. We cannot understand their violence without studying brain-behavior relationships.²⁰

Many have physical conditions which affect cognition, such as hearing and vision impairments, or medical conditions, such as asthma, which may be stress-related, environment-related, or long-term consequences of abuse. Others have medical illnesses with psychiatric symptoms and consequences, including AIDS, cerebral ischemia, diabetes, encephalitis, hypoglycemia, hypothyroidism, malaria, mononucleosis, systemic lupus, etc.
Abuse and trauma histories are virtually universal. The overwhelming majority of capital clients have suffered trauma outside the realm of ordinary human experience, whether it occurs within the home, as in incest and sexual abuse, or in the wider social setting, where growing up as an inner-city person of color means witnessing violent death of peers and loved ones. Whether they have suffered violence or helplessly witnessed violence to others, they live with the intrusive memories and remain hypervigilant in the expectation that random violence may visit them again at any moment. Maltreatment may involve trauma in the form of psychological battering (i.e., rejecting, terrorizing, ignoring, isolating, and corrupting) as well as physical abuse.²¹

Polysubstance abuse and addiction are commonplace, often secondary to self-medication following trauma.

Many clients are descendants of slaves, and it is common to have ancestors who died by lynching. Among their contemporaries, many have siblings, cousins, aunts and uncles who have died of AIDS.

Many clients have experienced abandonment, beginning with their biological parents. They have been molded and malformed by orphanages, foster care, and a host of institutions which have failed them along the way. Prior experiences in the criminal justice system may be perceived as part of a pattern of abandonment and betrayal from the perspective of the client —— or of institutional failures, from our perspective.

Clients are often difficult to interview about their own lives, and capital defense counsel must learn to see them as poor historians, rather than uncooperative liars. Capital counsel must learn to see client behaviors, including their inability to provide accurate personal history, as manifestations of their impairments and mental disorders, rather than hostility or manipulation. When we see these behaviors as signals of impairments, our observations of the clients may disclose more information about them than their verbal responses to specific questions. Counsel must become observational caretakers because the client's impairments will often preclude accurate self-monitoring or self-disclosure.

The whole defense team has an opportunity to observe the client over a long period of time —— from the initial contact immediately following the stressful moment of arrest and interrogation through the ordeal of trial. Between arrest and trial will be other stressful situations —— ranging from case developments and conflict in the custodial environment to anniversaries which trigger powerful emotions, including the milestones of everyday life (birth, marriage, holidays, deaths of loved ones) to the anniversary of the crime and arrest. Capital counsel learn to correlate observations of behavioral changes with such stressors.

Behaviors can be anything the client does or says —— from refusing a visit or declining to shake hands to accusing counsel of conspiring with the DA or laughing inappropriately. Noteworthy behaviors may include:

Social History Investigation
Mitigation investigation begins with the client, but it is inevitably a multi-generational inquiry aimed at identifying the genetic predispositions and environmental influences which molded the client's life and defined his or her range of choices. The goal is to humanize, but not to normalize, the client. That is, the goal is to present this client to the jury as a member of their human community, worthy of the jury's compassion, worthy of life. But the goal is also to show the client as someone with "diminished autonomy" —— and therefore worthy of protection from the ultimate sanction of capital punishment. We diminish the client's degree of responsibility, his or her capacity to exercise free will, by demonstrating how his or her decisions in life have been drastically curtailed by biological, social, and psychological influences which were not chosen.²³

It is imperative to identify the multiple risk factors in the client's life, not only to offer a more accurate and textured picture but also to anticipate rebuttal arguments comparing the client to siblings exposed to similar influences who have higher levels of functioning —— and haven't been convicted of capital murder. (It may be useful also to look for the buffers or protective factors which have enabled siblings to overcome the forces which have overwhelmed the client.) A complex, multilayered analysis of the client's life —— a social history —— helps the jury to understand the causes of the violence they examined in the guilt phase of the capital trial. As Professor Craig Haney has observed, social histories are not excuses, they are explanations.²⁴

A key element in social history investigation is the collection of reliable, objective documentation about the client and his or her family. This record gathering needs to be accomplished confidentially, using broad authorizations for release of confidential information signed by the client, parents, siblings, caretakers, and significant others.
The safest policy is to get everything, not to self-censor. A hospital may ask, for example, "Do you really want dental records?" What relevancy might dental records have to mitigation or mental health claims? In one case, they uncovered a powerful story of neglect: the client, at age eight, was taken to a hospital emergency room by a school teacher because his teeth had rotted from malnutrition and poor hygiene. The search for records typically includes birth certificates and genealogical archives; prenatal, birth, and pediatric charts; physicians, hospitals, and mental health records; school, social service agency, juvenile court, employment, Social Security, and workers compensation files; military records; marriage and divorce files; death and autopsy records; correctional, probation and parole records; court files and litigation records.²⁵

Investigating the capital client's biography is a sensitive, complex, and cyclical process. It is cyclical, rather than linear, because witnesses will need to be re-interviewed when new information has been discovered. As veteran mitigation specialist Lee Norton observes:

The complexity of the life-history investigation involves multi-generational evidence-gathering, tracing the client's migratory family to its roots in the rural South or from East Coast to West Coast by way of Oklahoma. The investigation encompasses all the forces which molded the client's life, both nature and nurture, the confluence and convergence of genetic predispositions and environmental influences. In the client's own generation, the investigation extends to siblings and cousins within the family, and to friends and acquaintances from every period of the client's life. Genetic predispositions are identified by carrying the investigation back in time, to include parents, aunts, uncles and grandparents, and forward if the client has children. Investigation of the client's childhood includes the climate of caregiving in the home, the quality of relationships, hygiene, nutrition, education, exposure to toxins (in the air, in the dwelling, in utero, etc.), the social and economic status of the commun
ity, cultural values, and so forth. Witnesses range from neighbors and relatives to classmates and co-workers, cellmates and army buddies, clergy and social workers, teachers and correctional staff.

Mitigation Witness Interviews
Interviews are sensitive because of cultural, psychological and other barriers that must be overcome to ensure that family secrets are disclosed. Concepts of remorse and shame have great cultural variability. A sense of loyalty may also obstruct cross-cultural disclosure. Regardless of the culture, life-history investigation is invasive of privacy —— seeking the darkest, most shameful and intimate secrets of the client's family.

Life-history interviews encompass many kinds of witnesses, so there is no single technique which will be appropriate in approaching the interview. Family members will be approached differently from neutral, third-party observers of family dynamics, such as welfare caseworkers, teachers, pediatricians, and other professionals. Within the family, there will be widely varying degrees of cooperation. Witnesses will often oscillate between denial and disclosure as painful truths unfold slowly while trust and rapport build up.

It is always helpful to know as much as possible about witnesses before approaching them. The same barriers (e.g., race, nationality., ethnicity, culture, language, accent, class, education, age, religion, politics, social values, gender, and sexual orientation) which separate the defense team from clients may also apply to family members and other lay witnesses. We must confront our prejudices, as well as theirs —— how we view the witnesses, as well as how they will see us. We must often ask whether there is someone else in the defense team who is better equipped to build a bridge to a particular witness. We must find what we do have in common with the witness and find a means of sharing whatever it is.

Sometimes friendly life-history witnesses can be interviewed by appointment, and common courtesy will dictate contacting them in advance. But reluctant witnesses find it much easier to hang up the telephone than to refuse to speak with an investigator on their doorstep. Reluctant witnesses often cancel interviews which have been set up by telephone, particularly if they are vulnerable to pressure from other members of their households or likely to contact police or prosecutors between the telephone contact and the scheduled appointment.

Witnesses should always be interviewed in person. The information needed in mitigation is simply not disclosed to strangers over the telephone. Full disclosure comes only in person with great patience, no matter how skilled the interviewer.

Life-history witnesses should generally be interviewed in the setting which is most likely to evoke memories of the client —— in the home, in the case of family members; at school, in the case of teachers; at work, if the witness is a former employer; etc. The goal of the visit is always to gather documents, snapshots, artwork, report cards, and other memorabilia, as well as to conduct the interview. The home environment or the school the client attended is itself a rich source of information about the client's social milieu.

Confidentiality and security are absolutely essential, so sometimes it will be more appropriate to interview family members one at a time in some neutral, safe setting, such as a coffee shop, church, or other public place. Since the goal is to put the life-history witness at ease, it is important that the location be one where the witness is comfortable —— not a law office.

Always ask witnesses to suggest others who may have useful information, but never let one witness control or limit our access to others. The family member who is least invested in preserving secrets is the one you need to find, and concealing family members will discourage us from finding that key witness.

The key to eliciting sensitive information is patience on our part and trust on the part of the witness. Building that trust requires honesty and absolute discretion from the investigator. A witness needs to know that sensitive information will not be revealed to other witnesses in the course of the on-going investigation. Promises, even small ones, must be kept. Never make promises that cannot be kept. Lee Norton summarizes the task succinctly:

Allow plenty of time for each interview, and understand in advance that follow-up interviews will be required. Help the witness to understand that the initial interview is only the beginning of a long process.

Family members may also share the client's cognitive or psychiatric impairments. They may abuse alcohol or other substances. There may be skilled denial of traumatic events and learned silence as to the norms of society for relatives who have been mis-socialized and corrupted as they grew up. Even absent trauma and corruption, family witnesses are often simply poor historians, flawed by their perception and insight, selective memory, biases, and inability to articulate. Finally, they have "normalized" whatever their life experience was. They do not automatically identify the signs of trauma, abject poverty or neglect which were everyday occurrences in their particular social group. One family which grew up in a migrant camp, for example, did not think it was noteworthy that they lived without any plumbing; but a school teacher remembered in horror the squalor of human feces in the front yard where the children played.

Life-history interviewers must become skilled in reflective listening. Questions must be open ended, and the witnesses' words must be mirrored in follow-up questions encouraging concreteness and detail. Judgmental labeling should be replaced with language that permits the witness to continue elaborating. Specific follow-up questions should encompass all the possibilities suggested by the witnesses' words and consistent with the ethnocultural context. As always, it is also important to explore with each witness strategies for corroborating what they know: who else knows what happened, or what document would verify it.

The interviewer needs to be sensitive to the retraumatization which may occur when witnesses narrate painful memories. The combat veteran who describes the horrific death or maiming of a comrade to a stranger will suffer the consequences of that revelation. The interviewer needs compassionate understanding of that process and should allow ample time to communicate that compassion to the witness. Follow-up contact is appropriate, to check in with the witness after intimate, humiliating, or painful revelations.

Developing mitigation evidence through life-history investigation involves hundreds of hours of work —— with meticulous attention to detail, painstaking efforts to decode and decipher old records, patience and sensitivity in eliciting disclosures from both witnesses and the client. Even when multiple compelling themes have been identified, the task of presenting the evidence effectively to a jury remains formidable. Empirical research and common sense suggest that capital juries credit lay witnesses over hired experts.

According to Scott Sundby's report:

Corroboration is essential. Ordinary citizens are not only the most credible witnesses, but they are another human connection to the client, another bridge between jurors and capital client.

Otherwise Untold Stories
The tabloids constantly remind us that the public rejects excuses for crime. One recent nationwide poll by Fox News/ Opinion Dynamics, for example, found that only 6 percent of respondents believe a victim of some kind of abuse or discrimination is justified in breaking the law. The survey asked "which of the many reasons often offered as defenses" is a "reasonable excuse." According to the poll, only 9 percent said alcoholism, 11 percent drug abuse, 11 percent being "discriminated against as an African American," 20 percent being physically abused as a child, and 23 percent being sexually abused as a child.²⁹ Thus, it remains critical to remind juries that mitigation evidence is not an excuse, but an explanation, a basis for mercy, understanding, and compassion, but never an attempt to justify. Equally important, mitigation is the unique set of facts surrounding one defendant's life. Its specificity and concreteness attach to one individual. Mitigation is not a conclusory label ("abuse"), but a biog
raphy of disability and deficits, hardships and unchosen life experiences.

Mitigation evidence not only saves the lives of individual clients. It also helps to illuminate, one case at a time, the causes of the violence that plagues American society at the close of the twentieth century so much more severely than other similarly industrialized nations. One legacy of this period of capital litigation will be the archive of these otherwise untold stories, these dark life histories brought to light.

Notes
1. Kaczynski's guilty plea to avoid a death sentence was as dependent on tireless mitigation investigation as the life verdicts in the Smith and Nichols sentencing proceedings. The Unabomber case is an important reminder that the development of mitigation evidence may be as critical to resolving cases through successful dispositions as to winning life sentences before juries.

2. Buchanan v. Angelone, ___ U.S. ___, 118 S. Ct. 757, 761 (1998).

3. 42 U.S. 280 (1976).

4. Woodson, at 303.

5. 438 U.S. 586 (1978).

6. Lockett, at 604.

7. Eddings v. Oklahoma, 455 U.S. 104 (1982), at 113.

8. Eddings, at 877.

9. 461 U.S. 1 (1986).

10. Skipper, at 4-5.

11. 492 U.S. 302 (1989).

12. Penry, at 319.

13. Penry, at 328.

14. Joan W. Howarth, Deciding to Kill: Revealing the Gender in the Task Handed to Capital Juries, Wisconsin Law Review, v. 1994, n.6, at 1345-1424.

15. The need for a defense team in capital cases is evident from the complexity of the litigation and the range of range of factual issues to be investigated. Mitigation specialists bring critical skills to the team, but every member needs to be sensitized to the problems of developing the case for life.

16. Stages of disclosure typically include denial, tentative disclosure, active disclosure, recantation, and reaffirmation. An awareness of these dynamics is essential for effective life-history investigation, as well as prudent judgment about how and when to memorialize sensitive information.

17. NAACP Legal Defense Fund, Death Row U.S.A., Spring 1998.

18. Over 60 foreign nations are under sentence of death in the United States. See John Cary Sims and Linda E. Carter, Representing Foreign Nationals: Emerging Importance of the Vienna Convention on Consular Relations As a Defense Tool, The Champion, v. xxii, n.8 (September/October 1998), at 28-31, 56-60.
19. The NAACP (op. cit.) also reports 51 death row suicides since January 1, 1973. There were 451 executions in the same period.

20. See, for example, Ruben C. Gur, Andrew J. Saykin, and Raquel E. Gur, Neuropsycholog-ical Assessment in Psychiatric Research and Practice, in Robert Michels et al., ed., Psychiatry (Philadelphia: J. B. Lippincott Company, revised edition 1991), ch. 72.

21. For the many varieties of trauma affecting emotional, intellectual, and social development, see the work of Professor James Garbarino, including James Garbarino and Gwen Gilliam, Understanding Abusive Families (New York: Lexington Books, 1980); James Garbarino, Edna Guttmann, and Janis Wilson Seeley, The Psychologically Battered Child (San Francisco and London: Jossey-Bass Publishers, 1988); and James Garbarino, Kathleen Kostelny, and Nancy Dubrow, No Place to Be a Child: Growing Up in a War Zone (San Francisco: Jossey-Bass Publishers, 1991).

22. See Deana Dorman Logan, Learning to Observe Signs of Mental Impairment, California Attorneys for Criminal Justice, Forum, v. 19, n. 5-6 (1992), pp. 40-49.

23. In Eddings, at 877, n.11, the Court also discussed how moral blameworthiness extends beyond the individual, quoting approvingly from the Twentieth Century Fund Task Force on Sentencing Policy Toward Young Offenders, Confronting Youth Crime 7 (1978): "Crimes committed by youths may be just as harmful to victims as those committed by older persons, but they deserve less punishment because adolescents may have less capacity to control their conduct and to think is long-range terms than adults. Moreover, youth crime as such is not exclusively the offender's fault; offenses by the young also represent a failure of family, school, and the social system, which share responsibility for the development of America's youth."

24. Craig Haney, The Social Context of Capital Murder: Social Histories and the Logic of Mitigation, Santa Clara Law Review, v. 35 (1995), at 547-609. "There is increased recognition that the roots of violent behavior extend beyond the personality or character structure of those people who perform it, and connect historically to the brutalizing experiences they have commonly shared as well as the immediately precipitating situations in which violence transpires." (Haney, p. 561)

25. See Russell Stetler, Locating and Retrieving Life-History Records, in California Attorneys for Criminal Justice and California Public Defenders Association, California Death Penalty Defense Manual (Los Angeles and Sacramento, California, 1998), v. III, Mitigation Workbook.

26. Lee Norton, Capital Cases: Mitigation Investigations, The Champion, v. xvi, n.4 (May 1992), pp. 43-45, at p. 45.

27. Id., at p. 44.

28. Scott E. Sundby, The Jury as Critic: An Empirical Look at How Capital Juries Perceive Expert and Lay Testimony, Virginia Law Review, v. 83, n.6, pp. 1109-1188, at 1144. (September 1997).

29. Andy Soltis, Abuse No Excuse For Crime: Poll, New York Post, May 3, 1998, p. 22.