Death Penalty Mitigation – What is it?

In Mitigation, we mitigate the person, not necessarily the crime. Perhaps all or most of Mitigation is done with conversations that lead to recorded interviews. Those interviews are crucial to the humanization of the accused.

Mitigation is the why behind or beneath the crime.

The Supreme Court has ruled that in deciding between the death penalty and life inside prison, the jury may consider ANY mitigating evidence a juror finds relevant. The jury must weigh the mitigating factors present by the defense against the aggravating factors presented by the prosecution.

What exactly is Mitigation for Criminal Cases?

In a very basic definition, it is reducing the seriousness of an occurrence. In a criminal case, Mitigation is to reduce the impact of sentencing of the client or the defendant in the case. The Mitigation Specialist takes on the task of humanizing the accused by telling the biography of their experiences. We explain how they were shaped and developed by environmental factors. According to the American Psychology Association, Environmental Psychology is the study of individuals within their environment. Broadly studied and examined, social settings and learning environments are a microcosm of the individual’s surroundings. You’ve probably heard, “We are products of our environments.” It is very true and has been proven repeatedly.

In a Criminal Case if it is not a Death Penalty, there are important historically admissible circumstances that a judge may consider before handing down sentencing. To provide this for an defense client is extremely beneficial to the end result.

How does Mitigation Impact the Death Penalty?

The American Bar Association (ABA) published guidelines from the capital murder cases. The guidelines instruct the defense team to conduct a full investigation into the client’s entire life. In fact, the Supreme Court has ruled that a defense attorney who does not investigate the client’s entire life and childhood had provided inadequate and ineffective assistance of counsel.

So, as a defense attorney in Capital case, you don’t have much choice, but you can choose that right Mitigation Specialist. The Mitigation Investigator is the starting and ending point for this humanization and biography in Death Penalty cases. We pull the history, the life-long history of the accused, and we work the life of the client from birth to present in great detail. Presenting detailed mitigation statements and reports are key to getting the better outcome by the jury.

If the goal is to prevent a Death Sentence, a thorough and diligent Mitigation Specialist makes all the difference. Life in prison over Death by lethal injection is a win for the Mitigation Investigator. If you have a case that simply needs defense, look into a great investigator such as FLDefenseInvestigator.com or in Arizona, TrueJusticeLLC.com is another great resource for criminal defense.

But Can Mitigation be done in any Felony case?

Yes, and it is a great idea for your client if you are the attorney-of-record. Character references, past employers, sports coaches, teachers, neighbors, extended family, school friends, and so many others can provide great details into the development of the accused. “We are products of our environments.” How we develop and grow is a factor in mitigation. The Mitigation Investigator is also a Mitigation Specialist gathering and presenting all the circumstances.

Most attorneys do not have the time (or specialized training) from law school or after law school to thoroughly investigate the mitigating circumstances. Equally as important is creating a binder and a catalog of mitigation to be utilized and presented during the penalty phase of a trial. Attorneys either need to seek funding for mitigation, or they may use the State’s funding program (in Florida, the Justice Administrative Commission pays those expenses in Death Penalty cases).

As a Mitigation Specialist and Investigator, we are able to identify people, to locate them, and to thoroughly and compassionately interview them in a competent and respectful manner. The Mitigation Investigator is skilled at recognizing the signs and indicators of mental health. Most importantly, is the ability to establish rapport with a variety of people from all walks of life.

Death Penalty cases and the mitigation itself takes an extraordinary amount of time – the sooner you bring on a Mitigation Specialist Investigator, the more prepared your defense team will be to save your client’s life.

What is the difference between a Mitigation Investigator and the Defense Investigator?

The Mitigation Investigator or Specialist uses different approaches to gathering information in the criminal case or death penalty investigation. The Mitigation Investigator goes beyond the scope of a defense investigator by diving into the historical information of the accused. The defense investigator needs the Who, What, Where, When, How, and of course the Why is on the shoulders of the Mitigation Investigator. A Mitigation Investigation can be very lengthy and complex lasting longer than 700 hours in many cases. Sometimes the Mitigation Specialist will re-interview witnesses or family members.

The Mitigation Specialist must develop rapport with the family members. They are a powerful asset to the case. Over the course of months or possibly years, the family will meet with their loved one’s attorney a couple of times and probably other professionals on the defense team.

FAQs – Frequently Asked Questions from Family and Friends about Mitigation

How do I reach the defense team?
- We provide you our 24/7 contact information
What can we know about the case?
- Obviously, guilt or innocence in Mitigation is not the goal but to demonstrate the life and loving attributes of the accused. Attorney-Client privilege is still maintained with the client and will be respected by the Mitigation Investigator as well. We will answer all of your questions and share with you everything that we can. But most importantly, is that you share with us all of the factors that contributed to the path of the client.
Is the Judge strict or lenient?
- The attorney may have insight about the court assigned Judge and may know that particular judge’s history with similar cases. It is important to address all concerns like this.
Will I have to testify in front of the Judge?
- Maybe. The more detailed the Mitigation Investigator can be, the better off the chances are to avoid the Death Penalty or maximum sentencing for the client. However, even by collecting great statements in-writing or recorded statements, there is a possibility that direct testimony is more impactful and could make all the difference. The Mitigation Investigator has been to court and testified hundreds of times over the years, so you will be briefed on courtroom procedure and how to respond to the attorney’s questions. This will be your chance to explain the life and circumstances of your loved one, your childhood friend, your co-worker, your trusted business partner….the accused needs this testimony and if you are involved, you will help to make a difference.

Mitigating Evidence

Factors that need to be considered are related to the mental health or the mental illness of the client if such illness exists. These factors may include:

Behavior Disorders
Specific Mental Illness
Potential Brain Trauma
Other Physical Trauma
Intellectual Disability
PTSD – Post Traumatic Stress Disorder
History of Abuse (the accused as the victim earlier in life)
Race – was it a factor in this case?

The Mitigation Specialist is not a clinical psychiatrist or a doctor, but she/he is an investigator that has been trained to either recognize the indicators or will articulate those findings relayed by statements in a detailed report to be presented by the attorney to the Judge and Jury. Collecting the evidence from medical records, eyewitnesses, or even past police reports may be instrumental in the case. It is not uncommon for the Mitigation Investigator to discover undiagnosed problems that need to be officially diagnosed. Medical conditions are absolutely a factor in Mitigation.

Equally of interest, was the accused targeted by race, were his charges enhanced because of race and the current system that has been historically unfavorable to black men?

The Mitigation Report

Every report is different and tailored to the attorney and the Judge. The backstory of how the attorney and Judge likes the information prepared is important. We don’t want to present the report in a way that is confusing or in an awkward format for the reader. It will be presented professionally and specific to those concerns. A good Mitigation Report will emphasize the strongest points for consideration. Environmental factors such as poverty, parenting issues, abuses as a child, trauma, and cognitive issues are heavily weighed.

The Mitigation Specialist – Summarizing the Story

Mitigation Specialists are entrusted with the critically important mission of investigating Capital Crimes and collecting the defendants’ life stories. They are an indispensable part of any competent capital defense team. As the Supreme Court has held, the Mitigation Investigator is tasked to uncover the “possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind.”

Mitigation Specialists often possess a clinical acumen, information-collection skills, and training that most attorneys do not have or don’t have the time to acquire as a knowledge base. Mitigation Specialists; however, have the time and the ability to elicit sensitive, embarrassing, and quite often shameful evidence of family abuse, physical abuse or even sexual abuse that the defendant may have never disclosed. Having the clinical skills to recognize congenital, mental, or neurological conditions, is also to understand how these conditions may have affected the defendant’s development and behavior. Identifying the most appropriate experts to examine the defendant and to testify on his behalf will help to support the Mitigation Investigator’s findings.

The Mitigation Investigator will…

Maintain close contact with the client and the family. Developing that rapport in this process can be the key to persuading a client to accept a plea to a sentence less than death as well.
Compile a comprehensive and well-documented psycho-social history of the client
Analyze all of the findings
Introduces a theme of the client’s life history
Identifies the need for an expert
Work with defense team’s experts to develop a comprehensive and cohesive case in mitigation
Prepare a thorough Report!

The power of mitigation evidence has been demonstrated anecdotally when judges and jurors have returned life sentences instead of Death.

To learn more about Death and Life-in-Prison sentencing in Florida, click on this link:

https://www.flsenate.gov/Laws/Statutes/2016/921.141

The statute in-part reads:

“(3) IMPOSITION OF SENTENCE OF LIFE IMPRISONMENT OR DEATH.—

(a) If the jury has recommended a sentence of:

1. Life imprisonment without the possibility of parole, the court shall impose the recommended sentence.

2. Death, the court, after considering each aggravating factor found by the jury and all mitigating circumstances, may impose a sentence of life imprisonment without the possibility of parole or a sentence of death. The court may consider only an aggravating factor that was unanimously found to exist by the jury.

(b) If the defendant waived his or her right to a sentencing proceeding by a jury, the court, after considering all aggravating factors and mitigating circumstances, may impose a sentence of life imprisonment without the possibility of parole or a sentence of death. The court may impose a sentence of death only if the court finds that at least one aggravating factor has been proven to exist beyond a reasonable doubt.

(4) ORDER OF THE COURT IN SUPPORT OF SENTENCE OF DEATH.—In each case in which the court imposes a sentence of death, the court shall, considering the records of the trial and the sentencing proceedings, enter a written order addressing the aggravating factors set forth in subsection (6) found to exist, the mitigating circumstances in subsection (7) reasonably established by the evidence, whether there are sufficient aggravating factors to warrant the death penalty, and whether the aggravating factors outweigh the mitigating circumstances reasonably established by the evidence. If the court does not issue its order requiring the death sentence within 30 days after the rendition of the judgment and sentence, the court shall impose a sentence of life imprisonment without the possibility of parole in accordance with s. 775.082.

(5) REVIEW OF JUDGMENT AND SENTENCE.—The judgment of conviction and sentence of death shall be subject to automatic review by the Supreme Court of Florida and disposition rendered within 2 years after the filing of a notice of appeal. Such review by the Supreme Court shall have priority over all other cases and shall be heard in accordance with rules adopted by the Supreme Court.

(6) AGGRAVATING FACTORS.—Aggravating factors shall be limited to the following:

(a) The capital felony was committed by a person previously convicted of a felony and under sentence of imprisonment or placed on community control or on felony probation.

(b) The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person.

(d) The capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any: robbery; sexual battery; aggravated child abuse; abuse of an elderly person or disabled adult resulting in great bodily harm, permanent disability, or permanent disfigurement; arson; burglary; kidnapping; aircraft piracy; or unlawful throwing, placing, or discharging of a destructive device or bomb.

(e) The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.

(f) The capital felony was committed for pecuniary gain.

(g) The capital felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.

(h) The capital felony was especially heinous, atrocious, or cruel.

(i) The capital felony was a homicide and was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification.

(j) The victim of the capital felony was a law enforcement officer engaged in the performance of his or her official duties.

(k) The victim of the capital felony was an elected or appointed public official engaged in the performance of his or her official duties if the motive for the capital felony was related, in whole or in part, to the victim’s official capacity.

(l) The victim of the capital felony was a person less than 12 years of age.

(m) The victim of the capital felony was particularly vulnerable due to advanced age or disability, or because the defendant stood in a position of familial or custodial authority over the victim.

(n) The capital felony was committed by a criminal gang member, as defined in s. 874.03.

(o) The capital felony was committed by a person designated as a sexual predator pursuant to s. 77 5 .21 or a person previously designated as a sexual predator who had the sexual predator designation removed.

(p) The capital felony was committed by a person subject to an injunction issued pursuant to s. 741.30 or s. 784.046, or a foreign protection order accorded full faith and credit pursuant to s. 741.315, and was committed against the petitioner who obtained the injunction or protection order or any spouse, child, sibling, or parent of the petitioner.

(7) MITIGATING CIRCUMSTANCES.—Mitigating circumstances shall be the following:

(a) The defendant has no significant history of prior criminal activity.

(b) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance.

(d) The defendant was an accomplice in the capital felony committed by another person and his or her participation was relatively minor.

(e) The defendant acted under extreme duress or under the substantial domination of another person.

(f) The capacity of the defendant to appreciate the criminality of his or her conduct or to conform his or her conduct to the requirements of law was substantially impaired.

(g) The age of the defendant at the time of the crime.

(h) The existence of any other factors in the defendant’s background that would mitigate against imposition of the death penalty.”

In taking note of “(7) MITIGATING CIRCUMSTANCES.—Mitigating circumstances shall be the following…”

All the above items from (a) through (h) are important factors, but often, (e), (f), (g), and (h) are commonly our focus.

What is not mentioned in the statute above is that race may also be a factor. African American men are disproportionately arrested and being held for Capital Crimes. InvestigatorOnCall.com recognizes these injustices in our system.

There is NO PLACE FOR RACISIM in the Judicial System, but for us to think that it is a fair system to minorities and men of color would be foolish. With the racist behaviors of many law enforcement officers and the limitations of the accused due to poverty and environmental factors, a defense team must consider a diligent Mitigation Investigator.

We have a lot of work to do.

Let’s get started!