CHAPTER 13 Special Challenges in Capital Trial Mitigation: Refraining to Communicate the Essence of Your Client
Sean Kennedy
Introduction: Reframing Death to Life, the Work of the Defense Team
The U.S. Supreme Court's Eighth Amendment jurisprudence mandates that a capital defendant has a broad right to present comprehensive, expansive mitigation1 at the penalty phase because our Constitution demands that jurors completely2 understand who the person is before they assess moral blameworthiness. Mitigation, the full story of the client's life, reframes the narrative of the capital trial from just the facts of the crime to all facts relevant to the moral decision of the jurors.
This chapter focuses on reframing the narrative about your client, beginning with preparation of a thorough social history that informs every aspect of the mental health investigation and allows the client to express concerns about the defense team's efforts to unearth painful events from his past. It extensively discusses specific aspects of the reframing process in developing mental health mitigation, such as intellectual disability, neurological and psychological disorders, antisocial personality disorder, and malingering. The chapter also focuses on special issues of relative culpability, institutional adjustment, victim impact evidence, lingering doubt, and execution impact testimony.
The Skill of Reframing
The prosecutor's narrative is that your client is evil, beyond redemption, and unworthy of any mercy at all, so that the jury has no recourse but to impose the death penalty as just, proportionate punishment that obviates the threat your client poses to society.
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 grave crimes, is vulnerable and broken but can be redeemed. He is deeply flawed, not evil.
Reframing the issues at the penalty phase in this manner is the work of the defense team. Comprehensive reframing is complex and challenging, but there is a standard methodology to achieve it. Mitigation identified, developed, and presented through the commonsense, coordinated thinking and work of the defense team3 according to national standards of capital defense practice4 is the way. This reframing methodology is working across the nation.
The Reframing Process: Creating a Defense Narrative
Reframing refers to meeting the prosecution's narrative with our own more complete defense narrative. As defense counsel, we cannot simply respond to government's presentation in court, which is merely reactive and allows the prosecution to dominate and control the discussion. Instead, we advance our own narrative that creates a new, different discussion about who committed the murder and how he should be punished.
Let's use a robbery-murder, a common scenario for a capital case, to further explore reframing. Let's assume our client is one of the two robbers in a double robbery-murder and that gunshot residue found on his hand suggests that he was the actual shooter of one of the victims.
The prosecution's narrative focuses exclusively on the robbery-murder, a situation in which our client participated in criminal acts that make it easy for the jurors to assume the worst about him and his motives. The traditional prosecution's narrative is that two predatory crime partners made a deliberate and callous decision to shoot the victims after taking their belongings in order to eliminate witnesses and escape with impunity. The prosecution will argue that the crime reveals that our client is a sociopath.
At penalty phase, we probably have to concede that our client fatally shot at least one of the victims. But we cannot build a meaningful, persuasive argument for life without the possibility of parole (LWOP) instead of death based on the prosecution's narrative. The basic facts are terrible: robbery, two dead victims, actual shooter, and so on. Instead, we need to reframe the entire incident in order to invite the jurors to view our client as a human being worthy of mercy and serious consideration of offered mitigation.
Focusing on an earlier, broader time frame, we learn that our client and the much older codefendant, who is a seasoned robber, have a history that helps explain why our client became involved in this robbery. Our client met the codefendant in a poor neighborhood where he grew up without a father. Our client looked up to the codefen-dant because he always had money as a result of selling drugs. The codefendant, who is nine years older, treated our client nicely and bought him meals when he was left alone by his mother without any food in the house. Later, the codefendant helped our client find a job as a dishwasher after our client dropped out of high school. The two eventually lost touch for several years after the codefendant was sentenced to prison for armed robbery.
Building the defense narrative through extensive interviews of our client in conjunction with ongoing investigation, we learn that our client met up with the codefendant at a party on the same night as the robbery-murder. The codefendant was celebrating his release from prison by drinking and smoking marijuana, which he shared with our client. The marijuana tasted "medicinal" and may have been laced with another, more powerful drug. We learn that our client, who has no felony priors, was asked by the codefendant to accompany him to another party, about a half hour away in a rural area. The codefendant showed him a gun, announcing that they should take it "in case things get wild."
Reframing requires you to concede some factual issues but pursue your own narrative about how and why the crime occurred. For example, our client admits participating in the robbery but insists that it was not preplanned. Consequently, in our narrative the client and the codefendant happened upon the victims, who were passed out in a parked car after a night of heavy drinking, when the codefendant stopped at a rural rest stop to use the bathroom. The codefendant unexpectedly announced that he wanted to rob the victims because this would be "easy money."
The prosecution's narrative is that our client callously shot the victims to eliminate witnesses and facilitate their escape from the scene of the robbery. This must be reframed if we are to have any hope of receiving LWOP. We learn from interviews that the code-fendant handed our client the gun and directed him to train it on the car while the codefendant rousted the victims and took their belongings. There was no plan to shoot anybody. One of the victims awoke and, startled, opened the car door next to where our client was standing. Our client, who was uncomfortable because he had never handled a gun before, panicked and fired at the window of the car door where the victim was exiting. The codefendant screamed at our client for being "so stupid," retrieved the gun, and then fatally shot the second victim. Our client protests that he had no idea any of this was in the works and insists that he would have refused to accompany the defendant if he had known in advance of the robbery plans.
The prosecution's narrative assumes that both defendants were equal crime partners who shared equal culpability and equal loot. But there are plenty of reasons to question this part of the prosecution's narrative. The codefendant is older and has a felony rap sheet, whereas our client has only misdemeanor convictions for drunk driving and disorderly conduct. We learn that after the shootings the codefendant busily transferred items from the victims' car to his car while our client urinated his pants and stood crying hysterically. (Jeans seized from the garage where our client lived were stained with urine, and a witness who arrived at the rest stop after the shooting told the police she saw "a young guy" crying.) The codefendant ordered our client to get in the car and then dropped him off" at a nearby town without giving him anything. (A search of the codefendant's house resulted in the seizure of numerous items that belonged to the victims.) As such, our competing narrative is that the codefendant was the leader and driving force behind the robbery-murder, but our client was a reluctant participant who expressed extreme remorse after the shooting.
Reframing Informs Thoughtful Penalty Strategies
The creation of a competing defense narrative in turn helps us to decide who to call as penalty witnesses and what to ask them about. For example, in our case, we clearly need to call a social historian to explain the long relationship between our client and the codefendant, with an eye toward illuminating why our client followed the codefendant into criminal activity. The social historian will lay the groundwork for other experts by testifying about the neglect, poverty, and abuse our client suffered as a child.
We will want to call some mental health experts. A psychiatrist or psychopharma-cologist could testify how marijuana laced with PCP or methamphetamine could affect impulsivity and executive functioning. A forensic psychologist could build on the social historian's testimony by explaining how our client's troubled upbringing and low intelligence rendered him especially susceptible to manipulation by the codefendant. The expert also could testify that our client's lack of a serious record and his reactions immediately after the offense are inconsistent with antisocial personality disorder, showing that he is truly remorseful and capable of change.
Family members flesh out our client's resilience during a difficult, deprived childhood as well as his good qualities as an adult, demonstrating that his actions on the night of the offense were completely out of character. All of this testimony could help a prison adjustment expert or other appropriate expert testify that our client poses a low risk of future...
