MITIGATION INVESTIGATION

-- A HOLISTIC APPROACH --

I. WHAT IS MITIGATION?
Working definition -- anything that will save your client's life.

A. Basic Caselaw -- “The United States Supreme Court has held that the 8th and 14th amendments to the United States Constitution require that the jury in a death penalty case be permitted to consider mitigating evidence, which includes ‘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.’ Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978). Likewise, we have held that article I, §§ 8 and 16 of the Tennessee Constitution require that the jury not be prevented from hearing evidence about the defendant's background, record, and character, and any circumstances about the offense that may mitigate against the death penalty. See State v. Cauthern, 967 S.W.2d 726, 738 (Tenn.1998).” State v. Stout, 46 S.W.3d 689, 704 (Tenn. 2001)

B. Tennessee statutory mitigating circumstances, 39-13-204(i) :

1. The defendant has no significant history of prior criminal activity;

2. The murder was committed while the defendant was under the influence of extreme mental or emotional disturbance;

3. The victim was a participant in the defendant's conduct or consented to the act;

4. The capital offense was committed under circumstances which the defendant reasonably believed to provide a moral justification for the defendant’s conduct;

5. The defendant was an accomplice in the murder committed by another person and the defendant’s participation was relatively minor;

6. The defendant acted under extreme duress or under the substantial domination of another person;

7. The youth or advanced age of the defendant at the time of the crime;

8. The capacity of the defendant to appreciate the wrongfulness of his conduct or to conform the defendant’s conduct to the requirements of the law was substantially impaired as a result of mental disease or defect or intoxication which was insufficient to establish a defense to the crime but which substantially affected the defendant’s judgment; and

C. Any other mitigating factor which is raised by the evidence produced by either the prosecution or the defense at either the guilt or sentencing hearing.

D. Nonstatutory mitigating circumstances are conceivably unlimited. A state cannot prevent the sentencer from considering and giving effect to evidence relevant to the defendant's background or character or to circumstances of the offense that mitigate against imposing the death penalty. See Lockett, supra, Eddings v. Oklahoma, 455 U.S. 104, 113- 15, 102 S.Ct. 869, 876-77 (1982). "'[E]vidence about the defendant's background and character is relevant because of the belief ... that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems may be less culpable than defendants who have no such excuse.' " Goad v. State, 938 S.W.2d 363, 369 (Tenn.1996) (quoting California v. Brown, 479 U.S. at 545, 107 S.Ct. at 841) (O'Conner, J., concurring)). Relevant mitigation evidence encompasses the "compassionate or mitigating factors stemming from the diverse frailties of humankind." McCleskey v. Kemp, 481 U.S. 279, 304 (1987), quoting Woodson v. North Carolina, 428 U.S. 280, 304 (1976).

E. Examples from caselaw – Borderline mental retardation, good acts in prison, abusive and deprived childhood, CPA/prison minister says defendant thrived on a structured environment and was proud of a carpentry degree he earned in prison, (Terry) Williams v. Taylor, 529 U.S. ___,120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); poverty-stricken, violent and unstable home life as a child, Carter v. Bell, 218 F.3d 581 (6th Cir. 2000); residual doubt, State v. Hartman, 42 S.W.3d 44 (Tenn. 2001); defendant turned himself in, People v. Murtishaw, 29 Cal. 733 (Cal. 1981); good conduct in prison, Skipper v. South Carolina, 476 U.S. 1 (1986);State v. Watson, 628 P.2d 943 (Ariz. 1981); defendant saved another's life, State v. Holtan, 287 N.W.2d 671 (Neb. 1980); the love of the defendant's family for the client, Cofield v. State, 274 S.E.2d 530 (Ga. 1981); defendant invented an alternative energy source, Jordan v. State, 518 So.2d 1186 (Miss. 1988); remorse, Clark v. Commonwealth, 257 S.E.2d 784 (Va. 1979); prosecutor offered a sentence less than death prior to trial, Cook v. State, 369 So.2d 1251 (Ala. 1978); that the defendant took and passed a polygraph, State v. Bartholomew, 682 P.2d 1089 (Wash. 1984); defendant was a war hero, Halliwell v. State, 323 So.2d 557 (Fla. 1975); post- traumatic stress disorder -- “arising out of defendant’s harrowing Vietnam military service experience and his wife's infidelity while he served there,” Goad v. State, 938 S.W.2d 363 (Tenn. 1996); defendant was not armed when the altercation began, Thompson v. State, 328 So.2d 1 (Fla. 1976); the defendant was father to two young children, Jacobs v. State, 396 So.2d 713 (Fla. 1980); the victim's father did not want the defendant to receive death, Romine v. State, 305 S.E.2d 92 (Ga. 1983); the defendant suffered from post-traumatic stress, State v. Gadd, 707 S.W.2d 846 (Tenn. 1986); the defendant served in the Salvation Army, and was a Christian, Hooper v. State, 476 So.2d 1253 (Fla.1985); the defendant is a slow learner, Neary v. State, 384 So.2d 881 (Fla. 1980); the defendant behaved while on death row prior to his second trial, Delap v. State, 440 So.2d 1242 (Fla. 1983); the defendant was a poet, People v. Harris, 36 Cal. 3d 36 (1984).

II. HOW DO I IDENTIFY AND INVESTIGATE MITIGATION?

A. IDENTIFY --

1. Keep an open mind as to what is mitigating in the beginning what may appear to be bad may be good

2. Collect all facts

3. Obtain and utilize the assistance of personnel w/ appropriate experience and/or training

a) social workers

b) investigators

c) paralegals

d) psychologists

e) psychiatrists

f) other experts (neurology, sociology, criminology, pharmacology, medical physicians, etc.)

4. Use team approach in analyzing facts of the case and facts of client's life to determine what is mitigating

5. Maintain relationship of trust and cooperation with client

6. Document client's appearance and behavior as well as what s/he says

7. Expect to spend significant time w/ client -- frequent communication

8. Client is most valuable team member

9. Be aware of what your Judge and prosecutor consider mitigating

B. INVESTIGATE –

1. Comprehensively

a) Extensive social history interviews of client by a skilled person whom the client trusts. This is a continual process. Clients do not usually like to volunteer sensitive information such as sexual, physical, and emotional abuse, history of mental illness, or substance abuse.

b) Extensive social history interviews of family members.

c) Obtain school records, interview appropriate people.

d) Obtain medical/psychiatric records, including birth records, interview medical personnel.

e) Obtain military records, interview appropriate people.

f) Obtain institutional records -- psychiatric or correctional, including records from juvenile commitments (CHR records).

g) Interview friends and neighbors.

h) Try to find "good guy" information and any physical items related to your client that would humanize him or her. For example, if your client has polio, obtain the braces or built up shoe he was forced to wear. If your client paints, obtain some of his work.

i) Investigate "bad guy" harmful information as well in order to assess the best ways to deal with it.

j) Interview clergy/social workers/probation officers and other people with whom your client had contact.

k) Investigate prior criminal convictions and juvenile adjudications.

l) Visit the homes where your client lived and/or other key places. Videotape or photograph.

m) Interview eyewitnesses to crime. Question the witnesses with a mitigation theory in mind, e.g, intoxication, extreme emotional disturbance, mental illness, self-defense.

n) Interview arrest/confession witnesses. For example, did client cry, express remorse, cooperate, slur.

o) Interview alibi witnesses.

p) Investigate victim's background and obtain any pertinent records.

q) Other. For example, the impact your client’s execution would have upon family and friends is mitigating. Ask children, girlfriends, etc., how the client has enriched their lives and how they will be affected if s/he is executed.

2. Promptly. Start as soon as possible.

3. Purposefully. Start on the basics and then develop an investigation strategy.

C. HOW DO I USE MITIGATION?

1. Explore mitigation areas in preliminary hearing questioning.

2. Competency to stand trial/to direct defense.

3. Motion practice

a) Discovery motions for exculpatory information regarding client, including mitigation evidence.

b) Suppress damaging confession due to client's mental retardation or mental illness.

c) Funding motion for expert assistance to investigate, examine and present mitigation.

d) Death penalty precluded as a sentencing option due to mental illness, retardation, etc.

e) Appearance of out-of-state witnesses to testify re mitigation.

f) In limine to determine admissibility of specific mitigating evidence.

g) Death penalty precluded as disproportionate given substantial mitigation evidence, outweighing any aggravating evidence.

h) Any other motions which revolve around or can incorporate mitigation themes.

4. Plea negotiations

a) Decide whether you want to share mitigation information with the prosecutor or victim's family

(1) Can it hurt you later

(2) Is it worth that risk

(3) Explore ways to minimize any risk

b) Investigate what prosecutor or judge considers mitigating

(1) Prior capital cases that were plead out

(2) Life experiences of prosecutor/judge

(3) Statements of either

c) Rely on statute and caselaw, jury studies

d) Persuasively present mitigation information to the decisionmaker (will it be prosecutor or particular family member?) in a compelling manner

(1) client's family member

(2) expert or defense team member

(3) client (directly or thru writing)

e) "Hard evidence" -- the actual ER reports or CHR sex abuse investigative reports, etc.

f) At the proper time reasonable time before trial, not last ditch effort when it is documented only after discussing with client and defense team and concluding that its a good idea

g) Role of victim's family

(1) It is very important that you make a sensitive attempt to educate the victims about the realities of capital litigation.

(2) Be aware that many prosecutors are terrible at dealing with victims. You may be able to provide information that the victims are not getting.

(3) Approaching the victims.

(a) Introduce yourself at the appropriate time during court appearances.

(b) Be sensitive to their pain and offer condolences.

(d) If questions are asked which are privileged, explain to them why you cannot answer.

(e) If it would not be appropriate to approach the victims in the courthouse, consider contacting them by letter or through an intermediary (pastor, counselor, victim's advocate).

(f) Do not try to sell a plea immediately, but after a decent interval educate the victims regarding the length of the appellate process in capital cases, the graphic testimony which will be required at trial, mitigation in the case, etc.

(g) Work through the prosecutor if you can. Have the prosecutor explain the above.

5. Voir Dire

a) Right to voir dire on attitudes toward mitigation. Morgan v. Illinois, 504 U.S. , 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). Not only must those jurors who would automatically impose death be excused for cause, but also "[a]ny juror to whom mitigating factors are likewise irrelevant should be disqualified for cause, for that juror has formed an opinion concerning the merits of the case without basis in the evidence developed at trial." Id. at 2235.

b) Voir dire on mitigation necessary to preserve client's right to exercise peremptory challenges. "The voir dire examination plays a critical role in securing the right to an impartial jury ... The principal purpose of voir dire is to probe each prospective juror's state of mind and to enable the trial judge to determine actual bias and to allow counsel to assess suspected bias or prejudice. Thus a voir dire examination must be conducted in a manner that allows the parties to effectively and intelligently exercise their right to peremptory challenges and challenges for cause ..." Thomas v. Commonwealth, Ky., 864 S.W.2d 252, 259 (1993) (quoting Bertelsman & Philipps, Kentucky Practice (Civil Rules) 4th Ed., Vol. 7, Rule 47.10(2) (1984)) (emphasis in opinion).

c) Jurors often do not perceive what attorneys or the caselaw and statutes say is mitigating as actually mitigating. Recognize this in conducting voir dire appropriately to make cause challenges, educate jurors, and ultimately tender instructions to hold jurors to the law.

d) A national study of jurors from actual capital cases indicates:

(1) Alcohol intoxication -- only 27% considered the fact that the defendant was under the influence of alcohol as mitigating, 14% saw that as aggravating, and 60% said that had no effect on their sentencing perceptions

(2) Drug intoxication -- only 26% considered the fact that defendant was under the influence of drugs as mitigating, 16% found that aggravating, and 58% said no effect

(3) Extreme mental or emotional disturbance -- 61% mitigating, 6% aggravating, 33% no effect

(4) No criminal record -- 32% mitigating, 10% aggravating, 58% no effect

(5) Mental retardation -- 80% mitigating, 2% aggravating, 18% no effect

(6) Loving family -- 16% mitigating, 3% aggravating, 81% no effect

(7) Defendant under 18 years of age -- 47% mitigating, 2% aggravating, 51% no effect

(8) Defendant is alcoholic -- 15% mitigating, 5% aggravating, 80% no effect

(9) Defendant is drug addict -- 13% mitigating, 10% aggravating, 77% no effect

(10) Defendant has history of mental illness -- 65% mitigating, 3% aggravating, 32% no effect

(11) Defendant from background of extreme poverty -- 14% mitigating, 1% aggravating, 85% no effect

(12) Defendant seriously abused as a child -- 44% mitigating, 2% aggravating, 54% no effect

(13) Institutional failure -- 50% mitigating, 4% aggravating, 46% no effect

(14) Testifying accomplice got deal -- 22% mitigating, 5% aggravating, 73% no effect

(15) Positive prisoner evidence -- 23% mitigating, 1% aggravating, 76% no effect

(16) Lingering doubt -- 37% mitigating, 2% aggravating, 61% no effect

(17) Defendant did not testify -- 10% mitigating, 14% aggravating, 76% no effect

(18) Victim was known troublemaker -- 23% mitigating, 10% aggravating, 68% no effect

(19) Victim had criminal record -- 20% mitigating, 9% aggravating, 71% no effect

(20) Victim was alcoholic -- 10% mitigating, 2% aggravating, 88% no effect

(21) Victim was drug addict -- 13% mitigating, 4% aggravating, 83% no effect

e) NOTE: The jury study statistics do NOT reflect the quality of presentation of the mitigation. Studies have shown that jurors give more credence to mitigation coming from disinterested (teachers, parole officers, neighbors) lay witnesses than from experts. To the extent that mitigators are beyond defendant’s control, they may be more meaningful to jurors. For example, the mere fact of drug or alcohol addiction may not be viewed as particularly mitigating, but if it’s presented as an inherited illness beyond the client’s control, jurors may be more sympathetic. No mitigating circumstance stands alone – mitigating circumstances are pieces of the life history of a client.

6. Guilt phase trial –

a) Integrate mitigation evidence into guilt phase case through the theory of the case. Elicit mitigating evidence through cross of prosecution witnesses and through defense witnesses.

b) Set the stage for penalty phase. This can be done in most cases regardless of whether the theory of defense at the guilt stage is actual innocence, self-defense, eed, or other.

c) NOTE: If there is a strong innocence case, lingering doubt is a good mitigator which can carry over into penalty. That does not preclude presentation of other mitigation evidence.

7. Penalty phase trial

a) Develop mitigation themes -- case plan

(1) Present witnesses/evidence to support themes

(a) Lay

(b) Expert

(2) Anticipate prosecution evidence and argument

(a) Motions in limine, discovery motions

(b) Prepare your witnesses to deal w/ the bad, soften the blow

Tender specific instructions which require jurors to individually vote on specific mitigators and which clearly apprise them of the law re standard of proof, no unanimity requirement on mitigators, free to exercise mercy, presumption of life and not death.

I. WHAT IS MITIGATION? Working definition -- anything that will save your client's life.