Introduction:

Basic Standards and Themes

Danalynn Recer

Gulf Region Advocacy Center

www.gracelaw.org

Capital Work

Answering a moral question by the application of legal analysis to scientific evidence.

Capital Work

• Death is Different:• Moral Question of Punishment

Battle over narrative received by all decision-makers, including prosecutors, victims’ survivors, community stakeholders.

• Entirely Subjective Question: What Gives a Life Value? Team creates their own outcome by giving value. Winning is always possible.

Capital Work

Clients Themselves are Evidence/Subject Matter of Litigation

• Responsibility for the whole client Client’s well-being, morale, daily functioning and

prison adaptation are the meat of the case. Client’s daily living is the creation of evidence; Client’s daily living is the creation of an outcome;

How Death is Different

• Ever-Changing Field:• Changing Standards of Decency• Brain science & other medical advances• Fast-paced legal developments

Team Litigation

• Involves Everyone on the Team:• Attorneys• Mitigators• Fact Investigators

Everyone interacts with the client Everyone filters/reacts to actions, words of client. Everyone assesses, judges, prioritizes, concludes,

decides.

“Case” = Client

• Global view of Client and case• Tactical decisions @ competency and impact on sanity and impact on

mitigation

• Must Withhold Judgment• Avoid prioritizing, narrowing, focusing, etc., for as

long as possible.

Strategic Consequences for YOU

• Moral/Political Questions Always Present:• Race & Culture

• Mental Health

• Religion

• Always Seeking Extra-Legal Solutions

• Must Get Real About Outcome

• We are Presumptive Winners

Practical Impact: New Tricks

1. Recover from Trial Psychosis: One Client = One Case, Integrating Theories

2. Get OVER Yourself Already: Universal Protocols You MUST meet; Stuff you MUST learn

3. Play Nice with Others: The Holistic Team Approach

Universal Standardsare NOT OPTIONAL

ABA Guidelines

Mitigation Guidelines (Supplemental Guidelines)

Protocols – Standards of Practice

Equal Protection

You MUST get the resources to Follow these protocols:FundingTeammatesExperts

The ABA Made me Do it

• “Counsel at all stages should demand on behalf of the client all resources necessary to provide high quality legal representation. If such resources are denied, counsel should make an adequate record to preserve the issue for further review.”

• — ABA Guideline 10.4(D)

Following Protocols Really Does Matter

• Culpability investigation and experts:• Wrongful Convictions Exposed• Death Sentences Down

• Mitigation Works:• Moussoui• Quintero

• Funding Litigation Has Teeth• Brian Nichols

Geography for JudgesThe U.S. is a Union of Many States, Governed by a Constitution

Consideration of Mitigation is MANDATORY

• Consideration of mitigation by the sentencer has always been mandatory.• Woodson v. North Carolina, 428 U.S. 280 (1976)• Penry v. Lynaugh, 492 U.S. 302 (1989).• Eddings v. Oklahoma, 455 U.S. 104 (1982).• Morgan v. Illinois, 504 U.S. 719, 729 (1992).

• Reaffirmed Recently:• Smith and Brewer and Cole.

Investigation of Mitigation MANDATORY (even in __________ County)

• A thorough social history investigation must be prepared in every capital case.

• Counsel may NOT make strategic decisions without first conducting a thorough mitigation investigation.

• Wiggins v. Smith, 123 S.Ct. 2527 (2003); • Rompilla v. Beard, 125 S.Ct. 2456 (2005);• ABA Guidelines for Capital Representation (2004).

Mitigation is NOT LIMITED. It is:

• Any evidence that has “any tendency” to make more likely the existence of a fact that “might serve as a basis for a sentence less than death”. Tennard v. Dretke, 124 S.Ct. 2562 (2004).

• “Any aspect of a defendant’s character…”

Lockett v. Ohio, 438 U.S. 586 (1978).

NO LIMITATIONS

• Not the judge• Not the caselaw• Not the evidentiary rules• Not the client or family• Not the witnesses• Not money• Not time• Not resources

Quiz

• Which of the following are mitigating circumstances in ___________?

• That Mr. Client suffers from a mental illness

• That Mr. Client taught his brother to ride a bike

• That Mr. Client survived an abusive childhood

• Mr. Client’s sincere religious beliefs

Quiz, cont’d.

• Which of the following are mitigating circumstances in __________?• That Mr. Client was raised in dire poverty

• That Mr. Client has been dependent on drugs

• That Mr. Client is an accomplished poet

• That Mr. Client is remorseful for his crime

New Rules, New Ideas

Changing our Habits of Mind

That is SO five minutes Ago!!!

.

Banned Phrases

• My Boss/Attorney/Office Won’t Let me . . . .

• Our Judge Won’t Let us…..

• Our jurors won’t go for that….

• My client would never take a plea. . .

Unlearn Defeat

• Don’t learn from loss

• Don’t learn to be a good girl

• Don’t deny your own motions

New Habits of Mind: Don’t Accept Rejection

• Never believe rejection of plea

• Keep asking for time and money and experts

• Never give up on the client

• Never give up on witnesses

New Habits of Mind: Re-capture Ignorance

• Maintain outrage

• Maintain Naiveté

• Have the wonder of a child

New Habits of Mind: Withhold Judgment

• Don’t exercise discretion until the very last minute

• Don’t type the case or client

• Don’t ask what you need

New Habits of Mind: Have Faith in People

• Give them a chance to do the right thing

• Hold them accountable if they do the wrong thing

• Natural Trend is Toward Life

• Public Opinion Changes Hourly

You Have Some New Friends (Call me!)

• Nothing is Impossible

• You are part of a community

• People will Rise to the Occasion

• Remorse: Almost 40% of the jurors were more likely to vote for death if the defendant expressed no remorse for his offense.”

• Humanizing the Defendant: The more a juror reported having felt sympathy or pity for the defendant, [or] having found the defendant likeable as a person. . .the more likely [the juror was to cast his or her] first vote for a sentence of life imprisonment.”

Capital Jury Studies Project Findings

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Potential Themes

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Client & Client’s Family History of Mental Illness

• Medical & mental health treatment records• Other pertinent records: employment, civil,

criminal, incarceration, school, drug treatment, social services

• Behavioral history – possible symptoms that were not recognized as mental illness

• Stigma – careful of using clinical / judgmental terms. Keep ears peeled for common terms – nerve problems, bad nerves, “touched,” crazy

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Client’s medical history• Interview client & family members• Medical records – look for key issues:

• Birth records, including mother’s prenatal records• Signs of abuse• Possible brain damage – fevers, head injuries,

seizures• Weight gain / loss

• Interviewing doctors, clinicians, other treatment providers (healers)

• Unreported injuries / illnesses

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Atkins - Mental Retardation

• School records, medical records, employment records

• Intellectual functioning – standardized testing, performance in school

• Adaptive functioning – Interviews with people who were around during early childhood

• Age of onset – records, interviews• Illustrative stories, anecdotes

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Drugs/Alcohol

• Substance abuse history – circumstance of first time, what substances, worst time, best time, last time, frequency

• Family substance abuse history – investigator observations, rehab & criminal records, medical records

• Self-medicating? Increase of substance use during times of stress / tumult

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Physical/Sexual/Emotional Child Abuse

• Developing trusting relationships with witnesses is crucial

• Interviews with people around during childhood (the more removed & critical, the better)

• Medical, school, social services records

• Family history of abuse

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Poverty

• Enquirer story vs. the New York Times story• Need balance of the two, but heavy on the

anecdotal• Rural poverty vs. urban poverty• Employment, welfare, social services records

of parents• Accounts from people who tried to assist• Stories of client helping others who were

poor

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Priors/Forgiveness

• Interviews with client, witnesses, victims of priors

• Restorative justice

• Possible facilitation of communication between client and victim(s)

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Good Guy evidence

• What do his loved ones love about him?

• Nice things he has done for others

• Cards, letters, phone calls, good deeds

• Employment history

• Relationship with children, nieces / nephews, etc.

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Skipper Evidence

• Prison records – review and do an initial evaluation

• Interviews with guards, cellmates, chaplains

• Prison adaptation / classifications expert

• Commutation expert

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Religion

• History of spiritual life – family, friends, community

• Preachers, fellow church-goers, Sunday school teachers, jail chaplains, inmate chaplains

• Bible study course certificates

• Cellmates and other inmates he’s converted

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Employment/Military

• Full employment history (include odd jobs, paid under the table)

• Interviews with supervisors, co-workers, regular customers

• Full understanding of type of work

• Attempts to find work

• Interview military buddies & superiors

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School

• Performance in school

• Attendance

• Disciplinary records

• Favorite classes, favorite teachers

• Struggles in specific subjects

• Stories

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Talents--art, music, etc.

• Doesn’t have to be an amazing talent, could just be a hobby or interest.

• Take into account local interests & activities that may be foreign to you, but will mean a lot to the jurors.

• Humanize, individualize, draw parallels to friends, children, neighbors, relatives.

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Who is the Client?--artifacts of a life

• Find the Family Historian who can give you access to Grandma’s treasure trove in the attic• Bowling trophies, ribbons• Photo albums, old home videos, old letters• Old records: birth certificates, medical

records, receipts, wills, etc.• Childhood drawings, creations, book

reports, dioramas, report cards