This is a Must Read: Tell the Client's Story (Edward Monahan and James Clark, editors)
(A shorter version of this review ran in The Champion September 2017).
Gregg v. Georgia was one of several cases that came down from the Supreme Court on July 2, 1976, reinstituting the death penalty in the US. Kentucky responded by passing a death penalty bill almost identical to the Georgia statute approved in Gregg. Kentucky's death penalty was back in business.
Ed Monahan was at the time a recently minted lawyer in Kentucky's new Office of the Public Defender. He formed the Death Penalty Task Force with several other new public defenders to flesh out the new statute and to offer assistance to private attorneys called upon to defend under the new law. Ed was the editor of the first iteration of the Kentucky Death Penalty Manual, planned the first public defender training held at Shakertown and led by Millard Farmer, and organized the task force into teams to give advice to counsel throughout the state. Ed soon became the Director of Training for the Department of Public Advocacy and led the effort to train Kentucky public defenders in how to handle capital cases. By the late 1980's, he had joined with James Clark, who later obtained a PhD in social work, on training, consulting, and handling capital cases. In no small way is Ed responsible for the fact that only one person has been executed involuntarily in Kentucky since Gregg.
Those of you who were defense lawyers at the time remember those days. Everyone was trying to figure out their statute and what was and was not admissible in the punishment phase of the trial. Mitigation was a new concept, mostly defined and constrained by the statute. When a case was tried, lessons learned were passed on. Soon an oral history developed. Norms began to be formed. At the time, there was no such thing as a mitigation specialist. Team defense, while taught by Millard Farmer, was a virtual unknown. There were no standards. There was not a bar experienced in capital cases. There was no public defender division dedicated to handling capital cases. And there were a lot of death penalty verdicts, eventually over 80 in all.
The rich oral history developed nationwide and by the late 1980's became the American Bar Association Guidelines for the Appointment and Performance of Counsel In Death Penalty Cases (1989). Fourteen years later, the guidelines were updated. Later the Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases (2008) was published. Together these three documents became the gold standard for capital teams, capturing the lessons of the oral history and providing guidance for attorneys, mitigation specialists, investigators, leaders, and courts.
Ed Monahan, recently retired as the Kentucky Public Advocate, and Dr. James Clark, presently the Dean of the Florida State University College of Social Work, have combined to give a gift of immense importance to the capital community in the form of Tell the Client's Story (2017). This is a book that captures the development of capital defense that is true to all three fundamental documents but that goes much, much further. Theirs is an up-to-date compilation of current and best practices. This book is essential for new and experienced capital defense lawyers alike as well as mitigation specialists, investigators, and anyone else who might be called upon to serve on a team defending someone's life.
Ed and Jim have gathered together a brilliant group of authors, many of whom have lived the history of the modern death penalty. What follows are just some of the gems captured from these skilled and experienced practitioners.
Mitigation Matters. John Blume and Russell Stetler lead off the book with a chapter entitled “Mitigation Matters” that sets the tone for the entire book. These two giants who have helped shape the use of mitigation in capital cases express just what the stakes are: Mitigation works “only if the capital defense team is committed both to conducting a comprehensive investigation of the client's life and to developing and integrating the result of the investigation into a compelling, credible narrative for life.” (19) Prosecutors get death when they effectively present a “dehumanizing melodrama of death.” The prosecutor's formula is simple: show that the defendant committed a horrible crime; demonstrate that the defendant is a remorseless killing machine; and finally argue that the death penalty is a necessity for protecting society.
Mitigation changes the prosecutor's narrative, although to be effective it must be presented persuasively. Blume and Stetler identify ways that mitigation is failing in capital cases. The first is the “failure to develop an integrated, coherent theory of the case that resonates at both the guilt or innocence phase and the penalty phase of the trial.” The second failure is relying too heavily on experts hired specifically for the trial. As an antidote, the authors encourage integrating those experts with lay witnesses and social history records. The third is the failure to create empathy for the client. Rather than presenting the client as totally broken beyond repair, the authors encourage counsel to present the defendant as likeable and to present his story in an empathic way.
The authors are convinced that mitigation works to save lives. They deny that there are clients without mitigation. “We believe that such a story is present in every capital case and is simply waiting to be found and told. That unshakeable belief lies at the core of this chapter and this book.” (42)
Competency of Counsel. Peter Joy and Rodney Uphoff emphasize that the ABA Guidelines from 2003, cited with approval in Wiggins, Rompilla, and Williams, are not merely aspirational, but rather spell out exactly what is expected of a reasonably effective capital defense lawyer. They also caution that all nonlawyer members of the capital team must be willing to follow the ethical responsibilities of lead counsel rather than their own particular professional profession's responsibilities. Finally, they, like other authors, express the strong recommendation that the team include a mitigation specialist at the earliest possible time in the case.
Voir Dire. Ed Monahan and Lorinda Youngcourt describe best practices in capital voir dire. There is extensive literature in existence on the state of the art for capital voir dire, the Colorado Method of selecting a jury. Given the emphasis of this book, jury selection on mitigation is also front and center. “Voir dire is the time to ensure jurors understand what mitigation is and the responsibility each juror has to consider fully and independently all the mitigation , statutory and nonstatutory, presented to them in both the trial or penalty phases.” And yet, given its importance, the authors cite from the Capital Jury Project that “people who are not qualified to make the life-or-death decision nevertheless are chosen to serve as jurors.”
The Capital Jury Project. Marla Sandys, Elizabeth Vartkessian, Heather Pruss, and Sara Walsh provide some of the oral history developed from the Capital Jury Project in a chapter entitled “Setting the Stage and Listening to What Jurors Have to Tell Us about Mitigation.” This is a terrific chapter with insights that you perhaps won't find elsewhere. These authors emphasize that the concept of mitigation is not something that jurors understand, particularly unless counsel does something to counteract that. As a result, the concept of mitigation must be presented to jurors as early in the case to prevent it from being treated as aggravating. “Frontloading” is the concept that mitigation is embedded in the merits phase of the trial. “When mitigation is not frontloaded, jurors often fixate on the victim's family, on the graphic crime scene photos, and on their views of the defendant. Jurors who are not provided with mitigation in the guilt-innocence phase will simply have nothing beyond the state's presentation of the crime to discuss when deliberating about guilt or innocence.” (101).
To be effective, mitigation must answer difficult questions jurors grapple with. Jurors often believe that the defendant's difficult upbringing is no different than their own. They hear that the defendant's siblings did not kill and yet shared the circumstances of the defendant's background. Jurors want to know why the defendant didn't make better choices. “Without addressing this prevailing belief of individualism and choice, jurors are more likely to dismiss mitigation as irrelevant.” (104) Finally, jurors are concerned about whether the defendant will be violent in the future.
One method for identifying jurors with issues like the above is through the vigorous use of jury questionnaires, which they note is specifically endorsed by Principle 11(a)(1) of the ABA Principles of Juries and Jury Trials (2005). For example, they propose the following questions, which would be completed prior to showing up for jury selection or at its beginning: “Anyone can overcome a difficult childhood if he really tries to. Do you agree or disagree?” “Committing a crime is a matter of free choice. Agree or disagree?” “People should not blame their childhood for problems they experience as an adult. Agree or disagree?”
There are a couple of other insights of interest from the Capital Jury Project. A study noted that “when a juror perceives the attorney-client relationship as warm, the odds of that juror being more receptive to mitigating evidence increases substantially.” (107). Finally, jurors serving on cases resulting in a life sentence believed the defense attorneys were fighting harder than the prosecution.
Neuroscience and Mitigation. Chapter 5 is entitled “Thinking about the Brain: What is the Meaning of Neuroscience Knowledge and Technologies for Capital Mitigation” by Dr. Valerie Hardcastle. In addition to simple explanations of different psychiatric and neurological exams, Dr. Hardcastle makes an observation about neurological evidence and mitigation. She asserts that while neuroscience evidence has a significant role to play in capital cases, “it is effective only if used in conjunction with a comprehensive social history and other converging behavioral health data.” (117)
Leading the Mitigation Team. In “Creating and Leading the Mitigation Team,” Jim Clark and Ed Monahan provide fresh insights on capital teams that can be found in few places in the capital literature. They emphasize the importance of having a healthy team with a good leader to maximize the potential for a good outcome. “It is rare a team just happens. They must be assembled, developed, and wisely led and managed.” (141).
The team members themselves have a significant responsibility. “To be a member of a mitigation team requires a high level of personal maturity because the individual ego must be set aside to act as an agent of another person, even when intellectual disagreements or strategic differences might arise…When joining the mitigation team, the members must understand the complex role they have assumed and must be emotionally prepared to work within these constraints. The team member's number-one job is to help the leader make the best decisions for and with the client.” (142)
There are special problems for a capital mitigation team. That team by definition consists of different professions, with unique ethical requirements and even different ways of looking at facts. Monahan and Clark have valuable insights into how to deal with these differences. They borrow from J.R. Karzenbach and D.K. Smith's The Discipline of Teams (1993) in recommending eight tasks for leaders leading teams: 1) “Establish urgency, demanding performance standards, and direction.” 2) “Select members for skill and skill potential, not simply for their personality types.” 3) Pay particular attention to first meetings and actions.” 4) “Set some clear rules of behavior.” 5) “Set and seize upon a few immediate performance-oriented tasks and goals.” 6) “Challenge the group regularly with fresh facts and information.” 7) “Spend lots of time together.” And finally, 8) “Exploit the power of positive feedback, recognition, and reward.”
The authors address several other problem areas for teams. As an antidote to the absence of trust, they recommend that leaders intervene to identify the problems and “reframe them as difficulties that can be solved.” Rather than run from conflict, leaders should view it as “creative conflict.” The “leader's job is to avoid squelching creative conflict while also working to preventing conflict from becoming disrespectful, unresolved, uncontrolled, or toxic.” (152) Some leaders avoid accountability for results that fall short. “Effective teams are characterized by mutual accountability between leaders and team members.” One way to ensure accountability is “to develop written records of decisions and strategies that lead to a written list of tasks, which team member will complete the task, and the specified deadline for the task.”
The authors stress the importance of the team undergoing regular capital case reviews. “The absolute necessity of measured, deliberative reflective thinking is the reason national standards of practice exist, the reason a defense team of professionals from multiple disciplines must be assembled, and the reason case review is a crucial practice.” (156)
Developing Case Theories. Robert Walker, an experienced consultant in capital case reviews, offers valuable insights in his chapter “Developing Case Theories: Processes and Methods.” Walker has participated in well over 50 capital case reviews, which give him unique insights into not only behavioral health issues in capital cases but also how capital teams can develop more persuasive theories of life. The reader is encouraged to read this rich chapter, as no summary can do justice to its depth.
Walker is a critical thinker. As such, he emphasizes that there are “facts”, what many of us would call “facts beyond change,” and “interpretation”, which are the majority of what we would call facts. He cautions that “defense teams must be vigilant for the prosecution's presentation of interpreted findings as if they were hard facts.” This applies particularly to behavioral health. “Psychological and other behavioral health experts rarely talk about the role of constructs in assessing mental health among clients. Instead, they present diagnostic findings as if they were factual. However, most of what is measured, analyzed, and reported about clients' behavior consists of constructs.”
Walker advocates bringing in behavioral health professionals into theory development. Having been a part of many case reviews with Walker, I can attest to the wisdom of that recommendation. A consulting expert should be added to a capital case as early as possible. A testifying expert should only be added later, after a tentative case theory has been developed. “This is because the selected expert's testimony must be largely congruent with the case theory. And the case theory may well shape the kind of behavioral health expert needed.” (172).
Walker is a proponent of case reviews. There are six purposes for holding case reviews: “1. To review and consolidate timelines and scenarios. 2. To develop persuasive case theories. 3. To explore all case details that might require expert testimony or at least further investigation. 4. To examine things left undone or that members of the team have avoided due to difficulties or denial. 5. To explore alternative ways of relating to clients to achieve better attorney-client relationships and agreement on strategies given the current theory of the case. 6. To discover missing pieces of information or as yet unexplored legal actions.” (183)
Turning defendants into persons. Chapter 8 is written by Robert Walker, Jim Clark, Suzanne Hooper, Stephen Tripodi, Sean Kennedy, and Ed Monahan. There are two gems in this section I want to highlight. First, they provide guidance to mitigation specialists and others on the duty to report, emphasizing the NAPD and NALDA statements on the issue. “Professionals who do not believe they are covered by the attorney protections and do not find these options satisfactory should not work with a defense team on the belief that it is acceptable to go ahead and report according to their own ethics. These tensions merit full, open, respectful discussion between mental health professionals, team members, and persons employed by the attorney. Effective mitigation teams resolve such ethics challenges successfully without exposing their clients to damaging consequences.” (212)
There is also an excellent section on the management of boundaries. “The essential feature of the boundary lies in continuing to see oneself as a professional acting in an entirely professional role, no matter what the client is doing or saying. Although mitigation specialists must bring their own feelings into the work, they continue to be the person performing a crucial role with their clients…The bottom line is that while mitigation specialists can be expected to have strong emotions toward their clients, their professional behaviors need to be tempered by reason and balance.” (217)
Having a successful relationship with a capital client. Margaret O'Donnell has built a career defending clients both at the trial and post-trial levels. She shares one of her secrets in this chapter, that is spending the time to develop a relationship with her client. She calls that the “paramount responsibility of the lawyer.” “…time spent with the client is never wasted time.” (246)
The key to developing that relationship is the building of trust. “Clients who do not trust their legal teams often have little interest in even discussing pleas.” (241). How do you develop trust? For one thing, you work the case thoroughly and vigorously. You also listen, empathize, have patience, and partner with the client and his family.
A phenomenon O'Donnell addresses is that of “team-splitting,” whereby the client tells one thing to one member of the team and another to another member, asking for confidentiality in that communication. O'Donnell recommends that the team must recognize team-splitting and “prevent its toxic nature by agreeing to have no secrets with the client that are not shared with other team members.” (245)
Integrating experts into the case. Ed Monahan has spent much of his career educating public defenders about experts—how to get them funded, how to choose them, how to present their testimony, and the like. Here he uses that lifetime along with one of the experts he has often consulted, Jim Clark, to talk about integrating experts into a capital case.
We all know how important experts are to saving a life in a serious capital case. Lay witnesses alone will usually not suffice. “An effective mitigation expert provides something lay witnesses cannot: approaches that are grounded in successful professional experience, methods that reflect advanced training, and opinions that are informed by valid scientific knowledge and ‘best practice' approaches available in contemporary professional life.” The authors wisely remind us, however, of how skeptically jurors view experts, particularly those presented by the defense. As an antidote to this skepticism, the authors recommend integrating lay witnesses with the experts.
From that general notion, Monahan and Clark put together very practical advice on what kind of expert to secure. Particularly valuable is a section on meeting with an expert for the first time, with a valuable checklist of questions for the attorney to use. (298-299). They include a sample agreement to use in hiring an expert.
Developing a consistent theme for life. I couldn't wait to read Chapter 12 entitled “Telling the Client's Story: Developing a Consistent Theme for Life Imprisonment without Possibility of Parole”, written by Steve Bright. Reading this is like hearing Steve give one of his iconic closings. No summary would do it justice, but here are a few nuggets. Overall, he recommends that “defense counsel must convince the jury that life imprisonment without the possibility of parole is sufficient punishment for this particular client for this crime, regardless of what the members of the jury think about the death penalty in general or what may be appropriate for other offenders who commit other crimes.” (317) Bright relies on framing as vital to a life verdict. “The jury's verdict often depends on what question the jury thinks it is being asked to answer.” (322) He recommends framing the issue as follows: “is the client so beyond redemption that he should be eliminated from the human community? Is the client so lacking in human qualities, without even a glimmer of humanity, that the death penalty is the only punishment—particularly when another severe penalty, life imprisonment with no possibility of release or parole, is available?” (323). He emphasizes what the issue is not: whether the death penalty is right or wrong, forgiveness, responsibility for the crime, whether the client will be punished, whether this is a horrible crime, and “whether this crime is so horrible that death is the only appropriate punishment.” (326-327)
Framing the issue must be done at every opportunity. “Defense counsel should take advantage of every opportunity in jury selection, opening statements and closing argument at the penalty phase to emphasize in concise and understandable language the critical aspects of how the jurors are to proceed through their deliberations and to frame the issues in a way that is helpful to the client.” (330)
Studies have shown that many jurors believe that once they find an aggravating circumstance, they have but one choice, death. To counter this, Bright recommends that counsel “must convince the jury that conviction at the guilt-innocence phase and the existence of aggravating factors does not end the inquiry and require death. The terrible crime and the aggravating circumstances make the crime eligible for the death penalty, but they do not require it.” (325)
Bright cautions counsel not to minimize the crime or the pain undergone by the surviving family members. “[D]efense counsel must acknowledge the murder, the loss of life, the suffering of the victim and the victim's family and friends, the client's responsibility for the crime, and the anger of everyone, including the jurors.” (324)
Special circumstances. Sean Kennedy is a Loyola Law School clinical professor and former federal public defender who once ran a Capital Habeas Unit. He writes Chapter 13 entitled “Special Challenges in Capital Trial Mitigation: Reframing to Communicate the Essence of your Client”. He states that whereas the prosecutor frames the defendant as evil, beyond redemption, and unworthy of mercy, the “defense narrative reframes the crime as the worst day of the client's life and emphasizes that the crime does not define the client as a person. His whole life must be considered. The client, while guilty of a grave crime, is vulnerable and broken but can be redeemed. He is deeply flawed, not evil.” (342). Kennedy proceeds to discuss many of the circumstances that occur regularly in capital cases, from prosecution preauthorization committees in the federal system, front-loading mitigation, client objections to interviewing family and friends, the Atkins determination, avoiding the drive-by evaluation, deferring a diagnosis, dealing with the antisocial personality disorder, malingering, relative culpability, gang membership, rebutting victim impact evidence, and many others.
The Court of Public Opinion. Ed Monahan has been training Kentucky public defenders on the effective use of the media for several decades, so it came as no surprise to me that he finished this book with a chapter entitled “Communicating a Client's Mitigation in the Court of Public Opinion: A Comment on ‘No Comment”. As the title indicates, Ed is not fond of defense lawyers saying “no comment.” Instead, he says that “purposefully communicating the rest of the story or a more complete picture is one of the primary responsibilities of the capital defense team.” (387)
Ed recommends that capital teams use a five-step plan of action to influence ethically and persuasively: “1. Anticipate the moment. 2. Brainstorm possible statements. 3. Write out one to three persuasive points with your framing. 4. Do not improvise no matter what you are asked. 5. Deliver your points regardless of question, bridging from the question to your framed points.” (399)
A couple of other thoughts are worth mentioning. Leaders of organizations within death penalty states know what a problem capital punishment is, consuming resources, creating conflicts, burning out employees. No leader in such an organization should fail to learn the lessons contained in this book. Mitigation specialists are in many ways the heroes in the telling of the decline of capital punishment in the US. While the Supplemental Guidelines are their bible, this book should become their friend.
Another note: the death penalty is continuing to decline in usage. Whether the culture wars now raging under the present administration change that, as occurred during the 70's and 80's, remains to be seen. However, the lessons that are contained in this book are exceptionally useful whether there is a death penalty or not. As long as there are sentencers, there will be a need for attorneys, social workers, mitigation specialists, and investigators to find the stories about the person to be sentenced and to create a narrative that will persuade the sentencer to grant a more merciful sentence.