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The Death Penalty and Mitigation

By Diana McCoy, Ph.D.

All too often the fact that every death penalty case is really two trials, a guilt/innocence trial and a sentencing trial, is ignored. This posture is aided and abetted by the fact that many times the defendant wants to focus exclusively on the fact that he did not do the crime of which he is charged and is in denial about the very real possibility that he may be convicted. Defendants can often foil even those attorneys who appreciate the importance of carefully preparing for the sentencing phase by "stonewalling" about important background information in an effort to stress their normalcy and the extreme unlikelihood that they would ever engage in such culpable behavior. This can make it very difficult to proceed with mitigation.

Because the awesome responsbility of the attorney who has assumed a death penalty case is so overwhelming, it is sometimes tempting to share the defendant's head in the sand mentality and go into denial along with him. This is especially tempting since typically the defense attorney is focusing the lion's share of his/her efforts on the guilt phase. To wait until the day before or the morning of the sentencing trial based on a misplaced sense of complacency, i.e., that jurors will not sentence a woman or a nineteen year old to death, and to then make a last ditch effort to save your client's life is bound to be viewed as a half-hearted measure at best, illustrating to the jury that even you do not think your client's life is worth the effort to adequately prepare for trial. The jury assumes that you, as the defendant's supposed confidante, know "the real truth."

Thus, skiping on preparation conveys an important corroborating message regarding the defendant's guilt and your sense of his worth that they will not fail to appreciate. The guilt and sentencing phase are complexly intertwined, and strategy for both phases should be carefully thought out well in advance of the trial beginning to ensure that the guilt phase plants the seeds so essential for a successful penalty phase.


Develop a Mitigation Team

Because of the intense, time consuming work necessary to uncover evidence helpful in mitigation, it is recommended that you hire a mitigation expert/investigator team to help orchestrate the sentencing phase of the trial. A capital murder case is not the time to feel possessive. Peoples and Thomson (1998), the California Death Penalty Defense Manual, stress the importance of a team approach emphasizing an interdisciplinary perspective to provide the "myriad of skills" attorneys are neither trained nor educated to perform.

With a number of personalities all working toward the same common goal, at least one is likely to connect with the defendant and not only access heretofore crucial data he/she has kept secret out of shame and embarrassment but may also be able to provide the defendant the emotional sustenance necessary to negotiate the stress and outright terror of a capital trial. Often defendants suffer from serious personality disorders and counsel must use care in preventing the team members from being played against each other, a highly destructive process for all concerned.

Funds for mitigation experts, investigators, and trial consultants are available in capital cases. In the event that the trial judge is loathe to approve funds for services, this is an appealable issue. The Tennessee Supreme Court and Sixth Circuit Court of Appeals have ruled on the importance of all available mitigation material being put before the jury in sentencing. State v. Odom (1996) held that at a sentencing hearing it was not harmless error that the mental health expert was not permiited to testify about the defendant's background, but constituted reversible error. Goad v. State (1996) held that "...defense counsel was ineffective in failing to present the available expert mitigating evidence of mental illness which would have substantially strengthened the mitigation case of the defense." In Austin v. Bell (1997) the Sixth Circuit held that trial counsel's performance during the sentencing phase was deficient and prejudiced his defense because he presented no evidence. Similarly, a federal judge ruled in the post-conviction case of Abu-Ali Abdur' Rahman v. Bell (1998), in which this author served as mitigation expert, that the defense at the original trial had not presented existing evidence that might have proven helpful in the penalty phase of his trial, granting him a new sentencing trial.

The mitigation expert, with the help of the investigator, collects all data pertinent to the defendant's background, including, but not limited to, educational, medical, employment, legal, and military records as well as those pertaining to marriage and divorce actions, social service agencies, etc. Records often take a long time to obtain and thus you should start early. A paper trail should not be considered a luxury item to pursue in whatever time is left over, nor should it be considered a necessary evil or nuisance. This is often the only objective evidence you may have from what will be viewed as a disinterested party to support your expert witness' testimony. In one capital case in which this author was involved, a review of educational records indicated two grade failures, which could be explained by the defendant repeatedly moving back and forth, inter-state, between two divorced, feuding parents during those two years. This had implications for the defendant's subsequent personality development, helpful in explaining and making understandable her behavior at the time of the homicide.

Records are also an important source for locating potential witnesses. For example, in the post-conviction case of the aforementioned Abu-Ali Abdur' Rahman v. Bell, a previous homicide which took place in prison twenty years earlier was being used as an aggravating factor in a second homicide, the subject of the current litigation. Scrutinizing prison records resulted in finding the names of several correctional officers, since retired, who were willing to provide information on the circumstances of the case. Their version was much different from the misinformation provided by the district atttorney to the mental health agency examining the defendant relevant to the second homicide, misinformation which not surprisingly had negatively impacted their findings. This issue had been overlooked by defense counsel in the defendant's original trial.

In short, any scrap of paper that may be out there could potentially shed light on the defendant's character and situation, offer factual information, as well as suggest additional leads and must thus be doggedly pusued. For example, the military records of Abu-Ali Abdur' Rahman's father, which could only be obtained via court order, made reference to a marriage prior to that with the defendant's mother, a marriage of which none of the offspring were aware. This small detail, seemingly inconsequential, contributed to the overall picture of a highly secretive family, which the judge ultimately described as not just dysfunctioinal but bizarre. This, in turn, helped develop the image of an emotionally and behaviorally disturbed man who was not in total control of his faculties at the time of the homicide. Unsealing the adoption records of the defendant's siblings in another post conviction case involving this writer proved helpful in illustrating the extensiveness of mental illness, addictive problems, and other emotional disorders in the extended family, contributing to the overall picture of the defendant's considerable mental problems.

A mitigation expert may prepare a written report, incorporating the records relied upon. This may or may not include professional opinions, and the mitigation expert may or may not testify, depending upon the credentials of your expert and the needs of the particular case. In the event the mitigation expert does testify, a carefully researched, factual social/psychological history lends an air of thoroughness and credibility to the defense presentation in the penalty phase and at the very least is a good visual exhibit when complete with all available records. More importantly, a well-presented social/psychological history will artfully develop an integrated, cohesive picture of your client. A mitigaiton analysis written just for counsel, which the jury never sees, succinctly provides an overviw of the mitigation case by collecting, interpreting, and summarizing the data and including a timeline highlighting key events in the social/psychological, as opposed to legal, history of the defendant.


The Importance of Themes

The mitigation expert develops "themes" pertinent to the overall mitigation strategy. These themes vary widely, depending upon the defendant. For example, a primary theme may be that the defendant has had a terrible background, with all his siblings likewise having had difficulty in life and with no one emerging from such a family having much of a chance of success. If the siblings all did fine with the exception of the defendant, an explanation must be found to make this understandable, such as the presence of supportive adults in the lives of the others to whom the defendant did not have access, the defendant being singled out for abuse because of the father's suspicions that biologically he was not his child, and so forth. Another theme may be that of a passive personality stemming from childhood sexual abuse who is easily led and who would otherwise not have found herself in such a predicament had she not been under the domination of a stronger personality.

Themes of this nature are best asserted through testimony supported by police reports, third parties, medical records, and the like as oppoed to only expert testimony which relies on the defendant's word and psychological test results. Numerous and often repeated interviews with family, friends, co-workers, neighbors, and so forth are essential in obtaining sufficient detail and multiple perspectives to persuasively weave this theme throughout the sentencing hearing in a believable manner.

As the mitigation expert in the recent trial in Memphis of State v. Groseclose, where the defendant received life instead of death, this author researched a number of themes to be considered for presentation during the sentencing trial. Chief among them was the defendant's exemplary behavior during his twenty-one years on death row prior to being granted a new trial. Accordingly, a good deal of time was spent on death rose interviewing prospective witnesses and ferreting out those most likely to appeal to jruors by virtue of contributing something fresh to the proceedings. Among the many potential witnesses screened were correctional officers, work supervisors, fellow inmates, and prison administrators who had occasion to come into contact with Mr. Groseclose and were aware of his capabilities. In addition, individuals who had written to or visited the defendant over the course of many years were assessed for any contribution they could conceivably make. One endearing young lady carried with her to the witness stand a small, pink box decorated with a pig and filled with letters from Mr. Groseclose, who had served as a kind of dutch uncle duing her formative years, offering her advice on everything from college roommates to boyfriend problems.

Skillfully weaving together several themes is a means of capturing and maintaining the interst of your jurors. For example, several of the intertwining themes developed in the State v. Groseclose mitigation case pertained to the defendant's good behavior in prison, the importance of the defendant in the life of the young woman mentioned above as well as others, his considerable contribution to running the GED program on death row and assisting numerous inmates in earning their GEDs, functioning as a kind of liaison between the previous warden and inmates transitioning from the old to the new prison, etc.

It is important to tailor the mitigation case to the unique properties of your particular defendant's situation. Simply because a mitigation strategy has worked in one capital case is no reason to assume it will do so again. One of the most challenging aspects of the sentencing phase is to avoid presenting the trite and the expected, which generally has the result of putting jurors to sleep, and to instead risk the novel and creative.

Nothing is as believable as truth. Oftentimes attorneys are at first blush scared off by an initial impression of their client stemming from what amounts to a cursory examination of the defendant's life. An in-depth analysis of that individual's background, explaining and making understandable the basis for her behavior at the time of the crime, may be much more poignant, compelling, and realistic than a legalistic sleight-of-hand designed to somehow minimize or distort data in a manner which counsel considers less damaging. Similarly, attempts to bully your expert witness into "pumping up" a diagnosis into something more dramatic thatn is actually the case or to draw unwarranted conclusions in the interest of promoting a particular defense are not only ultimately embarrassing to all concerned but also, in the end, may be literally deadly.


Sensitive Interviewing of Witnesses is Mandatory

Because of the often very sensitive nature of the themes being developed, careful questioning by a knowledgeable professional trained not just in interviewing techniques but also in the critical topics being explored, such as sexual abuse, the Battered Wife Syndrome, addiction, and so on is crucial. For example, when questioning family and friends in exploration of the battered wife defense, one must be cognizant of the likely defensiveness of these individuals, who may have known of the battering but nonetheless encouraged the woman to return to her husband. Their defensiveness may be reflected in their tendency to downplay the extent of the abuse and the defendant's fear in the face of the abuse. Reducing this defensiveness in order to elicit data as well as develop potential witnesses is often called for on the part of the interviewer. An understanding of the dynamics involved in such abusive situations, involving, for example, isolation of the family and deprivation of power by the withholding of keys, money and the opportunity to earn money, credit cards, etc. is likewise important in gathering data from informants.

It is essential that infomants be interviewed individually rather than en masse or even in pairs since some things are easier to say one-on-one and if not held accountable for your words by the presence of others.

The mitigation expert should provide counsel a "cast of characters" to take the stage during mitigation, with an anysis of their strengths and weaknesses as well as suggestions for examination during trial. Each of these witnesses should present a slightly different perspective to hold the jury's attention while still developing a relevant theme or themes.

The more witnesses talk about your client, the more the jury is helped to see different aspects of your client and the more human he becomes in their minds. It is a well known truism that it is much more difficult to sentence someone you have come to know to death than it is a stranger, even with death-qualified jurors. The other benefit to having more rather than fewer witnesses is that one or the other of your witnesses is bound to appeal to some member of the jruy, whether this is an authority figure, a represenative of middle management, someone from the working class, and so forht.

It is critical to have a family member testify, which is sometimes easier said than done in view of the often extremely dysfunctional families from which defendants emerge. The absence of family is a pointed message to a jury that no one close to the defendant cares whether she lives or dies.

Consider obtaining the affidavits, or even videotaping the testimony, of any witness you consider absolutely critical to your case, especially since appeals may go on for many years. Witnesses sometimes have the unnerving tendency of dying just when you need them the most. For example, in one case the affidavit from the only reasonably coherent sibling able to attest to the extreme brutality of the defendant's father toward the defendant was helpful, but not as helpful as his live testimony or even videotaped deposition would have been had he not chosen to commit suicide.


The Impact of Expert Witnesses

Judges, as well as jurors, vary greatly in their attitudes toward expert witnesses, with some being more receptive and less threatened than others by experts. In addition, the jury may not find the expert credible, for one reason or another, especially in the case of a mental health expert who has previously testified in the guilt phase of the trial and is now "tainted." It may be advantageous, if psychological opinions are to be rendered in the sentencing phase of the trial, to have another mental health expert address pertinent issues in the guilt phase.

A mental health expert may help with an overview or a summation in the sentencing phase, with lay witnesses developing key issues relevant to this. The expert can also help interpret or give meaning to evidence presented by fact witnesses, offering expert opinions as to the significance of this data. These opinons and observations will appear to be more credible and substantial if a foundation is laid by the facts presented by the lay witnesses.

Mental health testimony can be a two-edged sword cutting both ways if it is not skillfully utilized to avoid dehumanizing your defendant and suggesting future dangerousness. Presenting evidence, for examle, of a defendant's seriously disturbed mental state may be very convincing, so much so that the jury votes to give him death in the absence of any information to counterbalance this by suggesting the individual can be successfully treated.

Although much of the focus tends to be on psychologists and psychiatrists as expert witnesses, often other specialists are necessary as well and you should not expect your mental health expert to wear all hats. Depending upon the unique features of your particular case, you may require the services of an addictionologist to explain what life circumstances prompted the defendant to turn to alcohol and drugs, such as self-medicating to deal with chronic stress or a family history of substance abuse resulting in genetic predisposition. An expert on mental retardation or learning disabilites can explain how these impairments contributed to the defendant's behavior, making these problems something about which jurors may then understand and empathize.

If the prosecution intends to call an expert to testify regarding the future dangerousness of the defendant and you do not feel you have strong evidence to prove otherwise, the mitigation expert can utilize well-documented research to attest to the inability of mental health experts to accurately predict future dangerousness, or, if his training has not prepared him for this, can locate a qualified expert to do so. When expert witnesses are prevented from discussing future dangerousness, defense attorneys can still defuse the dangerousness issue through the testimony of relatives and friends of the defendant, who can describe numerous instances of the defendant solving problems non-violently. They may also discuss their personal relationship with the defendant in terms of how they do not fear him or feel threatened by him (White, 1987).


Social Science Research May be Helpful

Your mitigation expert should be conversant with law and case law as well as social science research. Much may be learned from reading current literature and applying this to mitigation work. For example, White (1987) studied the factors believed to influence jurors' penalty decisions in capital trials, the nature of the crime committed, and the defense's protrayal of the convicted offender's character. He determined that certain defenses were most or least effective, depending upon the specific nature of the homicide. White further suggests that it might be possible after the defense strategy has been ascertained for both the guilt and mitigation part of the trial, to decide which jurors might be more receptive to what particular kind of defense. That is, if the mitigation is to be based on the defendant's problematic upbringing and subsequent development of psychological problems, male jurors may be preferable to female jurors. However, female jurors may be preferred if the defense has decided to present an argument against the propriety of the death penalty. In his research suggestions he also discusses the possibility that jurors who vote for life and death may differ from each other in terms of personality variables in that jurors who vote for death may possess characteristics of the "authoritarian personality," such as being conventional in their values, more likely to identify with powerful figures, and more likely to punish people who violate society's rules. It may be helpful to utilize the services of a jury consultant in targeting these jurors for elimination.

Hans (1988) talks about the importance of setting the stage for the penalty phase and developing the mitigation case by illustrating positive features of the defendant throughout the guilt phase, since jurors often make up their minds prior to the penalty phase even beginning. She discusses models of jury decision making, saying that it is less a matter of weighing and summing aggravating versus mitigating factors and more a matter of comparing the defendant to a prtotype of someone they believe definitely should get the death penalty, such as Richard Speck or Charles Manson.

Logan (1982; 1986) recommends against closing arguments by defense counsel which stress that the death penalty itself is equivalent to murder and that vengeance is a base motive since this directly attacks the values of these death-qualified jurors. Instead, making the defendant's behavior understandable as well as stressing the severity of life in prison without parole may be a more viable option because this takes into account the values and perspectives of the jurors, who can punish the defendant and protect society at the same time without imposing the death penalty.

Sontag (1986) found that college students do not have a clear understanding of the decision criteria for penalty instructions, nor do they fully understad the meaning of the most critical terminology used in these instructions, aggravating and mitigating. The importance of this is that if jurors do not fully comprehend these instructions they may be relying on their own decision criteria rather than those specified in the instructions. It is thus essential that counsel clarify this terminology to avoid confusion.

Barnett (1985) analyzed jury verdicts and found that the more certain jurors are that the killing was intentional, the more willing they are to render a death sentence.

Geimer and Amsterdam (1988) cited the most frequent reason for death verdicts as being the gruesome or cruel nature of the murder. Life verdicts were returned most often when there was lingering doubt about the defendant's guilt. It is imperative, therefore, to explore lingering doubt in the penalty phase.

State v. Odom, 928 S.W.2d 18 (Tenn.1996).

Goad v. State, 938 S.W. 2d363 (Tenn.1996)

Austin v. Bell, 126 S.W.2d 363 (Tenn.1996)

Abu-Ali Abdur' Rahman v. Bell, M.D. Tenn.No.3: 96-0380, decided April 3, 1998.

Barnett, A. (1985). Some distribution patterns for the Georgia death sentence.U.C. Davis Law Review, 18, 1327-1374.

Geimer, W. and Amsterdam, J. (1988). Why jurors vote for life or death: Operative factors in ten Forida death penalty cases. American Journal of Criminal Law, 15, 1-54.

Hans, Valerie P. (1988). Death by jury. In K.D. Haas and J.A. Inciardi (Eds.), Challenging Capital Punishment: Legal and Social Science Approaches, Newbury Park: Sage, 149-175.

Logan, Deanna (1982). Why you should not kill this man. Paper presented at the British Psychological Society's International Conference on Psychology and Law, Swansea, Wales.

Logan, Deanna (1986). Pleading for life: An analysis of penalty phase final arguments. In M.G. Millman (ed.) California Death Penalty Manual. Los Angeles, California: California Attorneys for Criminal Justice and California Public Defenders Association.

Peoples, Wendy C. and Thomson, James S. (1998). Penalty phase mitigation. California Death Penalty Defense Manual. los Angeles, California: California Attorneys ofr Criminal Justice and California Public Defenders Association.

Sontag, L. (1986). Comprehension of capital jury instructions. Paper presented at the Western Psychological Association, San Jose, California.

White, Laurence T. (1987). Juror decision making in the capital penalty trial. Law and Human Behavior. 11, 113-131.




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