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Perparing to Make the Case for Life

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“You never really understand a person until you consider things from his point of view - until you climb into his skin and walk around in it.”
— Atticus Finch in To Kill a Mockingbird by Harper Lee (1962)
The decision to seek death means that in the eyes of the state the accused is the “worst of the worst.” The crime is murder in the first degree and the facts are likely to have been atrocious and unthinkable. If there is public outcry it demands swift execution rather than due process. The defendant, more times than not, will have a lengthy record. Last but not least, the case against the accused is probably overwhelming in terms of guilt. Inevitably, defending these cases isn’t about walking a client out the front door of the court house after having heard the words “not guilty;” it’s about trying to avoid the death penalty. Death is different – no other punishment is as severe or irreversible. As William Munney (aka Clint Eastwood) said in Unforgiven: “It’s a hell of a thing, killing a man. Take away all he’s got and all he’s ever gonna have.” The U.S. Supreme Court first recognized that death is different in 1972, placing a shortlived moratorium on the death penalty after concluding that, under then-existing law, there was “…no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not.”1 Because death
is different, those states wishing to continue to tinker with the machinery of death had to change the mechanisms by which death was sought.2 And so they did. 1976 saw the death penalty reinstated under Gregg v. Georgia, which ushered in a new era of death litigation. After Gregg, the states needed to adopt statutes reserving death for the “worst of the worst” – limiting it to only those most deserving execution.3
The changes brought forth by Gregg place “aggravation” and “mitigation” at center stage.
Everyday experience tells us that culpability isn’t determined by actions alone – it is often determined by taking a much broader view which includes consideration of the actors involved as well as the acts committed. The moratorium on the death penalty was lifted with the understanding that revised, statutory schemes authorizing death must take into account not only the crime but the person. Suddenly things like aggravators
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and mitigation took center stage – aggravators being those circumstances specifically delineated by statute, any one of which allow the death penalty to be sought; mitigators being those circumstances which mitigate against a death sentence.4 The essence of a modern death penalty case is that it is not just a life that’s at stake – it’s also a life on trial. This “life on trial” aspect of death penalty litigation turns the normal rules of trial practice on their heads during the penalty phase of a capital trial.
Mitigation and ineffective assistance of counsel
Strickland v. Washington established that “the proper measure of attorney performance [is] reasonableness under prevailing professional norms.”8 This means that, as the practice of law evolves, so does the standard against which counsel’s performance will be judged. The past 40 years have seen vast changes in the way death penalty cases are tried, and bring vast changes in what is expected of counsel. It is now unquestioned that, under the prevailing professional norms, defense counsel in a capital case has an “…obligation to conduct a thorough investigation of the defendant’s background.”9 This obligation is non-negotiable – it remains even when the client claims to have had a “normal” childhood,10 even when the client is “fatalistic and uncooperative,”11 even when the client has told the attorney not to put on a penalty phase,12 even when counsel thinks there may not be a penalty phase or opines that the reason for failing to seek a thorough investigation is the belief that it would not have “made a great deal of difference.”13 Counsel can rightly make a reasonably informed decision to forego certain avenues of investigation,
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It’s the battle between aggravation and mitigation during a penalty hearing which makes death cases unique.
In Nevada, during the penalty phase of a death case, both sides can present evidence concerning mitigation and aggravation irrespective of “…whether or not the evidence is ordinarily admissible.”5 This wide-open aspect of capital litigation makes the penalty phase different from anything else put in front of a jury – criminal or civil. Ordinarily, attorneys scrupulously avoid telling the jury about a defendant’s criminal history to ensure fairness; during the penalty phase of a death case virtually every legal transgression ever committed by the defendant will be presented by the state.6 Ordinarily, subjects like a traumatic childhood are taboo during trial because they might play upon the jury’s sympathy; during the penalty phase of a death case the defense will focus almost exclusively on mitigation – mercy is a legitimate consideration. Ordinarily, the jury is informed that punishment is not to be considered; in a death case it’s the jury, rather than the judge, which must pass sentence.7
Developing a mitigation case requires time and effort.
Given these vast differences it is of little surprise that preparing a death case presents a unique challenge. Other criminal cases focus on a few moments or, at most, a few days. A death penalty case covers an entire lifetime, sometimes more. It is common for a large part of a mitigation case to be about a defendant’s family history. Abuse, alcoholism and mental illness all tend to run in families. The family secrets are often difficult to investigate, but they can provide compelling mitigation in the right situation. Presenting a compelling case for life means looking into dirty little secrets. By the time the case is ready, virtually every bit of existing information about the accused will have been investigated, volumes of documents will have been reviewed, and every significant person in a defendant’s life will have been interviewed. It takes months, often years.
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(b) Neighbors, friends and acquaintances who knew the client or his family; (c) Former teachers, clergy, employers, co-workers, social service providers and doctors; and (d) Correctional, probation or parole officers.20 The interviews should ideally be conducted in the presence of a third person or, alternatively, counsel should have an investigator or mitigation specialist conduct the interviews.21 In addition to the interviews, the investigation is expected to include the following documentation: (1) Medical history (including hospitalizations, mental and physical illness or injury, alcohol and drug use, pre-natal and birth trauma, malnutrition, developmental delays and neurological damage); (2) Family and social history (including physical, sexual, or emotional abuse; family history of mental illness, cognitive impairments, substance abuse or domestic violence; poverty, familial instability, neighborhood environment and peer influence); other traumatic events such as exposure to criminal violence, the loss of a loved one or a natural disaster; experiences of racism or other social or ethnic bias; cultural or religious influences; failures of government or social intervention (e.g., failure to intervene or provide necessary services, placement in poor quality foster care or juvenile detention facilities); (3) Educational history (including achievement, performance, behavior and activities), special educational needs (including cognitive limitations and learning disabilities) and opportunity or lack thereof, and activities; (4) Military service (including length and type of service, conduct, special training, combat exposure, health and mental health services); (5) Employment and training history (including skills and performance and barriers to employability); and (6) Prior juvenile and adult correctional experience (including conduct while under supervision, in institutions of education or training, and regarding clinical services).22
but an uninformed decision not to pursue a full investigation falls short of Strickland.14 Even being able to make a reasonably informed choice to not investigate further requires an investigation adequate enough to make the choice an informed one.15 The choices made must be objectively reasonable and every capital case requires a thorough investigation by defense counsel into a defendant’s background – it’s not enough to simply conduct a few cursory interviews or gain a rudimentary knowledge of the defendant’s background from a narrow set of sources.16 Failing to follow up on “pertinent avenues of investigation” as they become available also falls short of Strickland.17
The ABA view of how to conduct a mitigation investigation:
As a guide to what else might be expected under “prevailing practice norms,” the courts have often turned to the American Bar Association (ABA) standards. The ABA standards do not per se define as to what constitutes a reasonable investigation, but they are a helpful guide as to what the “prevailing practice norms” may be.18 The ABA views on the “prevailing practice norms” for death penalty representation are articulated in the American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases. The Nevada Supreme Court adopted the guidelines virtually whole cloth in enacting ADKT 411 which sets forth the Nevada Indigent Defense Standards. The guidelines themselves are succinct, with the meat of the insights coming from the attached commentary. According to the commentary, because the sentencer in a capital case must consider in mitigation “anything in the life of a defendant which might militate against the appropriateness of the death penalty for that defendant,” “penalty phase preparation requires extensive and generally unparalleled investigation into personal and family history.”19 As to life history, this means interviewing witnesses familiar with aspects of the client’s life history that might affect the likelihood that the client committed the charged offense(s), and the degree of culpability for the offense, including: (a) Members of the client’s immediate and extended family;
Who’s going to do all this?
The Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases’ stated goal is “…to summarize prevailing professional norms for mitigation investigation, development and presentation by capital defense teams….”23 Published in the Hoftra Law Review, the Supplementry Guidelines are, for lack of a better
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description, a treatise on prevailing professional norms. Here is what is says about the death penalty investigation team: The defense team must include individuals possessing the ability to obtain, understand and analyze all documentary and anecdotal information relevant to the client’s life history. Life history includes, but is not limited to: medical history; complete prenatal, pediatric and adult health information; exposure to harmful substances in utero and in the environment; substance abuse history; mental health history; history of maltreatment and neglect; trauma history; educational history; employment and training history; military experience; multi-generational family history, genetic disorders and vulnerabilities, as well as multigenerational patterns of behavior; prior adult and juvenile correctional experience; religious, gender, sexual orientation, ethnic, racial, cultural and community influences; socio-economic, historical, and political factors.24
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Preparing a death penalty trial is never easy. Under “prevailing practice norms” defense counsel is expected to conduct a mitigation investigation focused on a defendant’s life history, which is both exhaustive and exhausting. Death is different
and the cases are too. SCOTT COFFee has worked in the Clark County Public Defender’s (CCPD) office since passing the Nevada bar in 1995. He has been a member of the CCPD’s murder team for almost 10 years and remains actively involved in the litigation of death penalty cases. He has testified before the Nevada Legislature on several occasions and regularly argues cases before the Nevada Supreme Court.
1 2 Furman v. Georgia, 408 U.S. 238, 313 (1972) The Supreme Court’s use of the term “death is different” first appears in Gregg v. Georgia 428 U.S. 153, 188 (1976) (“…the penalty of death is different in kind from any other punishment imposed under our system of criminal justice. Because of the uniqueness of the death penalty, Furman held that it could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner”) (emphasis added) See generally Gregg, 408 U.S.; see also Kansas v. Marsh, 548 U.S. 163, 206 (2006) (Souter, J., dissenting); and Roper v. Simmons, 543 U.S. 551, 568 (2005). NRS 200.033 specifies some 15 separate aggravating circumstances, running the gamut from multiple homicides to murder at a school-sponsored activity. As to mitigation, NRS 200.035 list seven specific mitigating circumstances, number seven being the catch all “any other mitigating circumstance.” Under Lockett v. Ohio, 438 U.S. 586 (1978), a defendant must be allowed to present virtually any aspect of a defendant’s character, prior record or the crime itself which mitigates against a death sentence. NRS 175.552(3). Note that this language has been broadly interpreted by the Nevada Supreme Court to allow the prosecution to admit into evidence virtually any fact relevant to sentence including prior criminal record. While the list of aggravators is limited by statute, the state is free to present “other evidence” in support of a death sentence. Both aggravators and “other evidence” are
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presented at the same time with instructions to the jury that the “other evidence” is not to be considered until the “death eligibility” question has been answered. See, for example, McConnell v. State, 120 Nev. 1043, 1057 (2004). Ring v. Arizona, 536 U.S. 584 (2002). Strickland v. Washington, 466 U. S. 668, 691 (1984). Porter v. McCollum, --- U.S.--- (2009), 130 S.Ct. 447, 452-3 (2009), quoting Williams v. Taylor, 529 U.S. 362, 396 (2000); see also Wiggins v Smith, 539 U.S. 510 (U.S. 2003) Rompilla v. Beard, 545 U.S. 374 (2005) Porter, 130 S.Ct. Pinholster v. Ayers, 590 F.3d 651, 673-4 (2009) citing Porter, 130 S.Ct. at 453. Pinholster, 590 F.3d. at 672. See generally Bobby v. Van Hook, 559 U.S. ___ (2009) Pinholster, 590 F.3d at 673. Porter, 130 S.Ct. at 452-3. See Porter at 453 and Wiggins at 524-5. See Van Hook, 558 U.S. and Padilla v. Kentucky, 559 U.S. ___ (2010). Justice Alito wrote a concurring opinion in Van Hook which expressed his unique view that as to ineffective claims under Strickland he “…sees no reason why the ABA guidelines should be given a privileged position in making that determination.” It is clear other justices don’t necessarily agree and in the subsequently decided Padilla, the majority of the court made note of pointing out that “We have long recognized ABA standards and the like as guides to determining what is reasonable.” ABA Guidelines, sec.10.7, comment, as reprinted in 31 Hofstra L. Rev. 903, 1024 (2003). (Footnotes omitted) ABA Guidelines at 1020. ABA Guidelines at 1021. ABA Guidelines at 1022-3 Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases in 36 Hofstra L. Rev. 667 (2008). Supplementary Guidelines, sec. 5.1(B), at 682.
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