The American Bar Association (ABA) Guidelines provide that a mitigation specialist is a necessary requirement to meet the standard of care for capital cases. (ABA Guidelines 4.1(A)(1). ...
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Death Penalty Mitigation: Humanizing the Hatred
The American Bar Association (ABA) Guidelines provide that a mitigation specialist is a necessary requirement to meet the standard of care for capital cases. (ABA Guidelines 4.1(A)(1).
Humanizing a seeming monster isn't easy. It cannot be accomplished simply by attempting to weigh the good acts or the bad childhood actions of the accused against the horror of their crime. When you try that, you slip perilously close to an “eye for an eye”.
In death penalty cases, you have to focus entirely on the person the State is talking about killing, whether it makes sense; or whether it makes us safer; or whether it makes us a stronger society, to put them to death. Humanizing the hated is an extremely difficult road for the defense attorney because it is hard for the public, who are fed on sound bites of grotesquery, to grasp the importance of respecting people who do terrible things.
As the process of humanizing the “worst of the worst” unfolds, the defense attorney must first embrace the course of events and acknowledge the tragedy that brought your client to court in the first place, and remain ever cognizant of the survivors that are left behind.
One of the key differences in capital case preparation is the collection of reliable, objective documentation about the client's life history. [...]
It is the duty of counsel to lead the team in conducting an exhaustive investigation into the life history and factual circumstances of the client's case.
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In addition, at least one social worker, a mitigation specialist, and an investigator are, at the very least, required to be assigned to the case. Additional experts with special training in areas that are case-specific include, but not limited to: forensic medicine/pathology, DNA, forensic psychology, forensic psychiatry, pharmacology, neuropsychology, race and/or cultural issues, substance abuse, trauma, institutional life, toxicologists, to name a few.
At least one member of the team needs to have specialized training in identifying, documenting and interpreting symptoms of mental and behavioral impairment, cognitive deficits, mental illness and developmental disabilities because these will be factors, in one form or another, that will be present in almost every single case.
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To begin with, mitigation specialists are social scientists with training and experience in the forensic application of social science theory. They are investigators with special knowledge and experience in the human sciences and mental health issues. They are professionals with expertise in identifying, analyzing, interpreting, and incorporating relevant mitigation evidence into the theory of the case. They help attorneys to understand the defendant in the context of the factors that lead up to the offense.
As a general rule, the chief difference between an investigator who does not specialize in mitigation and a mitigation specialist lies in the strong clinical and/or mental health background possessed by most mitigation specialists. A mitigation specialist is trained to know the significance of the contents of most mental health and medical records or how this information may be relevant to a competent theory of mitigation.
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Mitigation specialists often generate documents and visual aids that depict the client's life and identify important patterns of thought and behavior, including the client's life history chronologies, annotated genealogies, time lines, and frequency charts.
Additionally, analysis of the life history evidence enables mitigation specialists to make recommendations about the need for other experts, such as psychologists, neuropsychologist, psychiatrists, neurologists, pharmacologists, or special education experts.
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COLLECTION OF MITIGATION EVIDENCE
The collection of mitigation evidence necessary for a proper and thorough mitigation packet will be voluminous. It is, in effect, a collection of the client and his or her family's entire life history. This evidence should consist of the client's entire background, including, but not limited to: education, social, medical, and mental health. Get everything. What may appear to be insignificant or irrelevant may be relevant or direct you to something of more significance.
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