How Does The Mitigation Consultant Proceed?
The life story of a typical capital defendant follows a sad, predictable arc. During his formative years, the adults around him—parents or surrogates, other relatives, neighbors, and others—have too often made decisions which invisibly but seriously damaged his early development, and impaired his judgment and emotional maturity.
The client may be exposed at an early age, with disturbing frequency, to darker aspects of life such as domestic violence, sexual abuse or promiscuity, chronic substance abuse or addiction, untreated mental illness, and a myriad of others. The effects of these handicaps are often compounded by social issues well outside the control of the client or his family unit: poverty, racism or xenophobia, educational or institutional failure, exposure to environmental hazards, exposure to wartime conditions, and the like.
The client is thus less able to function as a whole, healthy, law-abiding adult; and his dysfunction sooner or later emerges in the form of substance abuse, frequent anti-social behavior, economic irrelevance, and the like. Eventually, through happenstance or design, the client is accused of engaging in conduct that results in the death of a human being; and society, in its outrage, demands the extraction of the proverbial pound of flesh.
This is where a mitigation consultant’s value truly emerges. Here are three of the key tools you’ll find in his or her toolbox:
Time. No capital attorney, no matter how skilled or dedicated, has the time to meet on an ongoing basis with the key people in the life of his client. (This is especially true when, as is typical, many of those people live far from the jurisdiction.) The demands of his or her legal responsibilities alone are daunting; and the needs of his or her other clients also require time and attention. A mitigation specialist has greater flexibility to travel to wherever the evidence may lead; spend the in-depth time necessary to build rapport with those key people; develop trust; and parlay it into candor. Which brings us to . . .
Empathy. In acquiring the needed raw materials for a penalty defense, sensitivity and emphatic communication are vital. People whose lives have been so notably scarred by their own missteps, and who in turn have notably scarred the client, will not respond positively to one who appears judgmental, critical, detached, or otherwise lacking in empathy—the ability to “see the world through their eyes,” in light of their own unique experience. The advantage goes to the person who makes himself or herself available on an ongoing basis, who listens without judgment, who respects and maintains confidentiality, and who thus gains the trust needed to permit the witness to speak freely about the client’s life with a minimum of guilt or shame. The mitigation consultant is generally the team member best suited to this sensitive, ongoing task.
Breadth of knowledge. None of us exists independently of the circumstances of our lives, known and unknown, and of the overall world in which we have lived and grown and become the people we are. By virtue of the lives they have lived, and the particular adversities they have confronted, capital defendants are no exception.
Any list of social, scientific, or other potentially relevant disciplines in a given capital case is extensive enough to justify adding the disclaimer, “[i]ncluding but not limited to . . .” Expertise may be needed in areas as diverse as poverty, substance abuse, domestic violence, racial discrimination, xenophobia, immigration, exposure to environmental hazards, gangs, neurology, post-traumatic stress disorder (PTSD) and related mental disturbances, educational policy, correctional policy and procedure, cultural concepts, language, sexual pathology, anthropology, and potentially scores of others.
Once the mitigation consultant, working with investigators and other team members, has developed a comprehensive life history for the client, she then advises the client’s counsel of any and all potential themes and avenues of mitigation, and identifies any forms of expert assistance needed to give form and substance to those themes. As those experts are retained by counsel, the mitigation consultant provides them the required data for their review and analysis, and works with them and counsel as necessary to best utilize the experts’ findings as needed.