By Tiffany Lawrence, M.A., LCSW
When it comes to the lives of people who are preparing to be sentenced or who have already been sentenced to die in your community, the United States Supreme Court and the American Bar Association Guidelines are clear: a qualified capital Mitigation Specialist must be hired as a member of the defense team. Capital Mitigation Specialists (particularly those who have a background in clinical social work or psychology) have the ability to build rapport, as well as the diagnostic and information-gathering skills necessary to elicit very sensitive and often humiliating facts from family and friends about the capital defendant’s life. There are usually numerous details about his or her life that the capital defendant does not feel safe sharing with detectives, his or her own attorney or defense investigators. And if a defendant’s attorney is unable to get details about, for example, pervasive childhood sexual abuse, then how will that attorney be able to present those details to a judge and jury?
An effective mitigation specialist will have the training and skills to recognize and understand how congenital, emotional, cognitive, and environmental factors may have affected a capital defendant’s development and worldview. If, for example, a capital client was raised on a farm where heavy pesticides were used on crops perhaps there is a causal link between these pesticides and the brain damage that is showing up in the client’s CT scans. If so, it would be unfair and unethical to fail or refuse to present this information to a judge and jury.
But, whether or not you believe that mitigation specialists are a necessary part of a capital defense team, there is a bottom line: In Wiggins v. Smith, Warden et al., the Supreme Court held that the performance of Wiggins’ attorneys at sentencing violated his Sixth Amendment right to effective counsel when they failed to present mitigating evidence of the defendant’s traumatic childhood. Had these details been presented at Mr. Wiggin’s trial, they may have swayed the jury in handing down a life verdict rather than death. (Note: we know today that death by lethal injection is neither a humane, quick or painless way to execute a human being. We also know that innocent people have been sentenced to die in this country so failing to present mitigating evidence at trial is indeed unethical, dangerous, and inhumane.)
It is simply not enough to walk into a courtroom and tell a jury that your client “had a bad childhood” and leave it at that. This will not help the jury connect with the client on a human level and if they do not connect with him emotionally, there is little chance they will see a need to spare his life. It is often the state or district attorney’s intent to present the defendant not as a damaged human being, but as evil incarnate. It is up to the defense team to balance out the scales of justice by presenting information that helps illustrate that the capital client is indeed a human beinG and one who was exposed to copious amounts of severe psychological, physical, spiritual and/or sexual trauma. In other words, capital clients are at the top of the scorecard and it is the mitigation specialist who creates the narrative that tells the client’s story in a thoughtful and thorough manner.
What exactly does a mitigation specialist do? A good mitigation specialist should be able to provide a defense attorney and a psychologist (whose job it is to testify to what is uncovered) with plenty of evidence of the ways in which the capital defendant has positively contributed to other people’s lives. No one person is 100% “bad”, and this needs to be demonstrated in the court of law. A good mitigation specialist should also be able to analyze all kinds of pertinent records (employment, Department of Children and Families, military, mental health, educational, etc.) and include his or her clinical and diagnostic impressions for the defense attorney. In doing so, it will be important for the mitigation specialist to interview the client, his or her family members and anyone else who has ever known the client, including teachers, coaches, principals, childhood friends, doctors, therapists, ex girlfriends, etc. If these people can be found and are willing to talk, the thorough mitigation specialist will leave no stone unturned.
Other projects that a diligent mitigation specialist might complete are: the creation of audiovisual aids to emphasize case details, the maintenance of good rapport and regular contact with the defendant, his family, and all other key witnesses, and the maintenance of a cache of sturdy and comprehensive expert witnesses (i.e., forensic psychiatrists, APBB-certified psychologists, neurologists, blood spatter experts, prison life experts, etc.) to name a few. For the men and women already on death row (the post-conviction clients), a good mitigation specialist should develop and maintain an ongoing list of newly uncovered information and defense themes not formerly brought out in trials or appeals. There are thousands of cases in U.S. capital jurisprudence that sadly boast a lack of mitigation. There was no one to develop any genograms, family trees, head trauma timelines, documents proving poverty, or diagrams showing how close the city dump was to a defendant’s water supply. An effective mitigation specialist will not only get all the facts that have not previously come out in trial but will be able to present those facts in a way that helps jurors step out of a purely judgmental way of thinking and get in touch with their humanity.
In closing, there are at least two sides to every story and it takes a victim to victimize other people to the degree of which a capital defendant is capable. In our endeavors, mitigation specialists are asking the judge and jury to have more mercy on our clients than our clients had on their victims. I doubt there is a capital defendant out there who came from a very loving, supportive, functional familial system, which afforded him or her every opportunity to rise above poverty, abuse and adversity to become a functional member of society. So, in the interests of balance and justice, mitigation specialists continue to shed the light of day on the capital defendant’s history, disabilities and life circumstances…something no one has ever bothered to do before, which may be one of the reasons why he or she is sitting on death row in the first place.
Tiffany Lawrence has dual Master's degrees in Clinical Social Work and Criminology from the University of South Florida. She is a Licensed Clinical Social Worker (LCSW) with nearly 15 years of mental health and forensic social work experience combined. Ms. Lawrence has spent the last three years developing mitigation in capital and non-capital cases in state and federal courts at the pre-trial, trial, appellate and habeas levels. Ms. Lawrence is currently transitioning her private practice from Florida to Texas and can develop mitigation in any state in the U.S.