WHAT IS A CAPITAL MURDER MITIGATION SPECIALIST?

INTERVIEW:

LYNN: Can you explain what a mitigation specialist is and how you got into that work? 

SUSAN: I worked as a mitigation specialist for thirty-seven people who were either charged with capital murder and awaiting trial or had already received a death sentence and were seeking relief through appeals.

Here is a brief background explanation:

Capital murder is a first-degree murder charge that, in most states, carries either a sentence of life without parole (LWOP) or death. It is defined as a homicide that occurred during the commission of another crime, called an aggravator. These include robbery, rape, carjacking, or kidnapping, among other violent crimes.

The killing of a child or a law enforcement officer can also be used as an aggravator, to upgrade a first-degree murder charge to a capital murder charge, and the State can seek the death penalty after conviction. These are the most serious of crimes and the punishment should be reserved for the worst offenders. To be considered a capital case, it should meet the standard of heinous, atrocious, and cruel.

During a trial, prosecutors seeking a conviction will portray the defendant as a monster to jurors. They show crime scene photos, autopsy reports and listen to graphic testimony given by eyewitnesses, doctors, and law enforcement officers. The defendant sits with his attorneys and remains quiet throughout the trial. He may, or may not, have supporting family or friends in the courtroom.

District Attorneys and judges are elected officials and often run on platforms of being “tough on crime.” The death penalty is an eligible sentence in 27 states, which tend to have more conservative populations. I worked on cases in Alabama, Georgia, Mississippi, Tennessee, and Utah.

Jurors are curious about the defendant, but they learn little during the guilt/innocence phase of the trial, except from the prosecutor’s version of events. In many situations, the police have arrested the correct suspect, but prosecutors will overcharge a defendant and then work to prove the charge is correct. Guilt is a matter of degree.

LYNN: What happens once the person is convicted?

SUSAN: Once a client is convicted, the trial moves from the guilt/innocence phase into the sentencing phase. This is where the jurors and the judge learn about the defendant, and why his life should be spared from a death sentence. His story is told through lay witness and expert testimony.

LYNN: And that's where you come in.

SUSAN: Right. A mitigation specialist is considered a necessary member of a capital defense team, which is comprised of two attorneys who work as public defenders. At least one is required to be experienced with capital defense. A 'fact' investigator is usually employed as well. Sometimes I filled both roles.

While attorneys focus on the procedure of trial work, a mitigation specialist (MS) is court-appointed and joins the team. The role of the MS is to work with the client, his family members, friends, and his community, to develop a biographical, psychological and social history—the 5W+1H formula, of who, what, when, where, why and how.

We learn everything we can about the defendant and look for mitigating factors to understand how he ended up in this situation. We gather school, medical, and prior criminal records for our client, and his family members. We look for signs of fetal alcohol syndrome, birth defects, or mental illness, and evidence of intellectual disabilities or cognitive impairment in the client as well as his family members. We are also looking for examples of generational poverty, chronic illness, and trauma, both as experienced by the client, and by other family members. We try to do a comprehensive study of family members for at least two generations.

LYNN: What do you do with all of that information?

SUSAN: Through written interview notes and certified records, we build a case chronology, a family tree, and other documents that will be used as a mitigation roadmap for the attorneys and the expert witnesses who may testify, such as forensic psychologists, social workers, psychiatrists and sociologists.

The MS is responsible for putting together the witnesses for the sentencing phase of the trial and keeps the attorneys aware of her work through written reports, interview notes, and billing records. The MS also coordinates interviews between the expert witnesses and the client and other lay witnesses.

The sentencing phase is where the client’s story is told, through his family and friends, and expert testimony. It is critical that a judge and jury learns why this person matters, and why his life should be spared. The defendant has been found guilty of a capital crime, and this is when a sentence is imposed--life without parole (LWOP) or death. I never had a client sentenced to death.

LYNN: And what if the case goes to appeal?

SUSAN: In post-conviction appellate cases, an MS does the same work, usually because there had not been any mitigation work presented at a trial, so we start from nothing, midway through the appellate process. We gather the records, work with the family members and friends, and have them present their testimony to the judge, in the form of “this is what they would have testified to had they been asked during the trial.” Often, because of the staggering expense of these appeals, very large legal firms take on these cases as pro bono work. They will usually send some of their younger associate attorneys to begin the initial field work. They educate the MS about the case, and we teach them interview techniques, skip tracing, and other investigative skills.

For years I was the sole death penalty mitigation specialist in Alabama, and prior to my work, many people had been sentenced to death.

LYNN: Whoohoo! Thanks, Susan.