LOOK TWICE, SAVE A LIFE:MITIGATION IS EVERYWHERE

J E S S I C A S H O E M A K E R & E R I N K I N C A I D

C A P I T A L T R I A L B R A N C H W E S T

CHARGES

INDICTMENT 1 (County A): CAPITAL MURDER ROBBERY, 1ST

INDICTMENT 2 (County B): ROBBERY, 1ST ATT. MURDER 11 COUNTS - WANTON ENDANGERMENT, 1ST

POSSESSION CONTROLLED SUBSTANCE – COCAINE – 1ST

POSSESSION DRUG PARAPHERNALIA CARRYING CONCEALED DEADLY WEAPON

INDICTMENT 3 (County B): BURGLARY 1ST

WHAT IS MITIGATION?

“Mitigation involves any facts about the defendant’s character or background, or the

circumstances of the particular offense, that may call for a less severe sentence or punishment; any reason or fact that serves to lessen a defendant’s deserved punishment.”

Ashford, Jose B. with Melissa Kupferberg, Death Penalty Mitigation: A Handbook for Mitigation Specialists, Investigators, Social Scientists, and Lawyers, Oxford University Press 2013, p. 197.

WHAT IS MITIGATION?

We are more willing to impose death when the killer is painted in monochrome—if we can define him or her by the horror of the crime. Many think this is just; that is what blame

and punishment are about. . . . [Judy] Clarke argued that no person should be defined “by the worst moment, or worst day” of his life. She laboriously constructs a complex and sympathetic portrait of the accused, working with a far more varied

palette, sketching out the good and the bad, unearthing the forces that drove a killer to the terrible moment, and insisting that judges and juries and prosecutors see the larger picture, weighing not just the crime but the whole person. . . . It takes only a small spark of [understanding] to decide against sentencing someone to death.

- Mark Bowden, “Dzhokhar Tsarnaev Has the Most Ferocious Lawyer in America Defending Him, Vanity Fair, March 30, 2015

EVERY CASE HAS MITIGATION

Early entry investigation of capital cases Non-capital – no Chapter 31 funding

available Beneficial to all cases to advocate at

sentencing• Probation v. incarceration• Concurrent v. consecutive• PSI and later probation/parole determinations• Access to treatment• Minimizing collateral consequences

DUTY TO ADVOCATEABA Capital Guidelines 4.1(1)

Team should consist of two attorneys, investigator and a mitigation specialist.

KRS 532.007 – Sentencing Policy

KRS 532.055(b)– Verdicts and sentencing by jury in felony cases

“The defendant may introduce evidence in mitigation or in support of leniency.”

SQUARE ONE

WHERE IS MITIGATION?

• Client

• Other people

• Personal records

• Publicly available information

• Crime scene and facts of crime

• Other ideas?

INITIAL CLIENT MEETINGRecord your impressions and objective

observations of client’s demeanor, appearance, etc. during your meeting

Client’s behavior and actions immediately before, during, and after the crimeFact investigation: who, what, where, when, how?

Mitigation: WHY?

EARLY CLIENT MEETINGS(CONTINUED)

HIPAA-Compliant Release of InformationBasic Background Information

Addresses and phone number SSN, DOB, driver’s or other licenses

Contact information for important people in client’s life

Client’s recollection of social history: find the paper trail Where client was born, raised, lived: photograph when possible Psychiatric and medical care Social services (for self and children) and public assistance Criminal history (juvenile and adult) Academic and employment/military

Intoxication and Substance Use Disorders

Criminal History

Intellectual disability and/or neurological impairments• Physical features: markers for

FASD• Coherence• Speech patterns

Significant medical history• Brain injuries• Chronic un- or mistreated

illness• Toxin exposure

Mental illness markers• History of psych treatment -

self or family

Dysfunctional and positive relationships• Neglectful parents• Client as caretaker

Behavior following crime• Client turned self in• Interactions with jail staff• Expresses remorse

Demographic Factors• Age, race, religion, gender

POSSIBLE MITIGATION THEMES

DO

Build and maintain rapport: allow client to share personal information without judgment

Remain a unified front with other defense team members

Memorialize everything client says

DON’T

Suggest defenses or other case theory that could influence how or what information client shares

Shut down or ignore information not directly related to fact investigation

EARLY CLIENT MEETINGS

SETTIN

G GUID

ELINES F

OR

THE IN

VESTIGAT

ION

CAPTURING INTERVIEWS

Talk to attorney before you interviewDevelop a game plan for difficult witnesses

Are audio recordings okay?

Two memos: fact and mitigationConfidentialityOrganizationShield

CONTACT WITH CLIENT’S FAMILY AND OTHER INTERESTED PARTIES

• How should your admin handle their calls, and who is the point person for contact?

• How much are they allowed to know?

• Build and maintain rapport

• Always memorialize your conversations for the

team

RECORDS COLLECTION

Where are the records? Do you need a special release?

Do you have to pay for the records? Create and maintain a records request log Decide which team member will keep the

records How will the records be organized?

• Scanned? Bates numbers?• JustWare considerations• Distribution to other team members

Custodian/Contact Information

Record Type/Reason

Date Requested

Status Notes Bates No.

Cumberland Hall HospitalAttn: Sandra, Medical Records270 Walton WayHopkinsville, KY 42240(270) 886 1919Fax: (270) 889 2193

MH tx 2013-11-04 Received   MIT000046 – MIT000059

Western State HospitalMedical Records Department (Attn: Tiffany)2400 Russellville RdHopkinsville KY 42240(270) 889 6025Fax (270) 885 5257

MH tx 2013-10-24 Received Volta program no longer exists, but was run through WSH.

MIT000765 – MIT000925

CHFS-DCBS(502) 564-9554

P&P/custody 2013-10-28 Received Sent follow-up letter on 2013-12-10 because it was clear part of Seth’s file was missing/not sent to us originally. On 2013-12-11 Carrie Hall called; informed me that Seth’s file is missing/couldn’t be located. I requested a letter from DCBS stating as much. May need to follow-up on this letter.

MIT000008 – MIT000045

New Horizons320 Clay St.Owensboro KY 42303(270) 685-4499

MX tx n/a n/a Per Tonya Fleming, this program closed in the last few years. Need to figure out where records are now housed.

 

MITIGATION AT THE CRIME SCENE

Observations from the scene itself Conditions, especially if client living/spending significant time there Other notable surroundings What affect did the scene have on the client?

Canvassing Do they know your client personally? Do they have impressions or encounters with your client? Have they heard rumors about your client?

Is there a mitigation theme that can be front-loaded at trial?

Bathroom

Couch where defendant slept Kitchen

PROCESSIN

G THE

INFO

RMATIO

N YOU’V

E

COLLECTE

D

MITIGATION WORK PRODUCTM I T I G AT I O N S P E C I A L I S T

• Memos for all client and witness interviews

• Detailed, annotated records summaries

• Genogram

• Complete social history

• Comprehensive timelines

YO U

• Memos for all client and witness interviews

• Records overviews

• Witness log

RECORDS OVERVIEWSHow does the content in the records support your

case theory, mitigation themes, and the nexus between them?

Record Name

Page Number

Date of Incident/Event

Relevant Info

Notes

LifeSkills 35 7/15/1993 Diagnosed with ADHD, Bipolar. Prescribed Adderall.

No noted prior history of diagnosis.

Oldham County High School

2 9/12/1999 Assaulted another student with can of aerosol deodorant. Suspended 1 week.

That student was nephew of victim.

WITNESS LOG

Name Contact Info

Relationship to Client

Dates of Contact

Key Testimony

Subpoena?

Notes

Shelia Brown

123 Maple St., Little City, KY(270) 555-2233

Biological mother

1/5/13, 3/17/13, 6/8/13,8/5/13

Witness to severe abuse of client by her ex-husband (client’s stepfather).

Yes. Plans to attend entire trial.

John Thomas

641 Drury Lane, Little City, KY(270) 555-4120

Neighbor 6/15/13, 9/11/13

Client cared for him when he was homebound.

Yes. Call to remind.

Hard of hearing.

KRS 532.050 Presentence procedure for felony conviction

(2) The report shall be prepared and presented by a probation officer and shall include:(a) The results of the defendant's risk and needs assessment;(b) An analysis of the defendant's history of delinquency or criminality, physical and mental condition, family situation and background, economic status, education, occupation, and personal habits;…

(6) Before imposing sentence, the court shall advise the defendant or his or her counsel of the factual contents and conclusions of any presentence investigation or psychiatric examinations and afford a fair opportunity and a reasonable period of time, if the defendant so requests, to controvert them.

DUTY TO ADVOCATE DURING PRE-SENTENCE INVESTIGATION

Seth discussed his stepfather Ariel at several points during our visit, particularly regarding how abusive he was. He recalls being beaten, whipped, and yelled at by Ariel. Seth also said there was a lot of psychological abuse; when I asked him to explain this further, he gave examples of Ariel forcing the kids to take cold showers, extend their arms out to the side and hold heavy bottles, and kneel on grains of rice on the floor. He also recalled being forced to fight his brother Chris whenever Chris was trying to fight Amanda. Ariel would give Chris boxing gloves and make him hit Seth instead. Seth also remembered several occasions when Ariel would reach across the car – while driving in traffic – to backhand the kids for misbehaving.

v.

PSI

TRUTH

INDICTMENT 1 (County A): CAPITAL MURDER ROBBERY, 1ST

INDICTMENT 2 (County B): ROBBERY, 1ST ATT. MURDER 11 COUNTS - WANTON ENDANGERMENT, 1ST

POSSESSION CONTROLLED SUBSTANCE – COCAINE – 1ST

POSSESSION DRUG PARAPHERNALIA CARRYING CONCEALED DEADLY WEAPON

INDICTMENT 3 (County B): BURGLARY 1ST

INDICTMENT 1 (County A): CAPITAL MURDER ROBBERY, 1ST

INDICTMENT 2 (County B): ROBBERY, 1ST ATT. MURDER 11 COUNTS - WANTON ENDANGERMENT, 1ST

POSSESSION CONTROLLED SUBSTANCE – COCAINE – 1ST

POSSESSION DRUG PARAPHERNALIA CARRYING CONCEALED DEADLY WEAPON

INDICTMENT 3 (County B): BURGLARY 1ST

REGULARLIFE