Published on March 7, 2014
Making Mitigation Work at Every Stage Adam Tebrugge 520 12th St. W. #203 Bradenton, Fl. 34205 (941) 544-6151 www.TebruggeLegal.com
Lockett v. Ohio, 438 U.S. 596 (1980) Mitigation is: “any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.
What is Mitigation? Circumstances such as do not constitute a justification of excuse of the offense in question, but which, in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability.
Fla Standard Jury Instruction A mitigating circumstance is not limited to the facts surrounding the crime. It can be anything in the life of the defendant which might indicate that the death penalty is not appropriate for the defendant. In other words, a mitigating circumstance may include any aspect of the defendant’s character, background or life or any circumstance of the offense that reasonably may indicate that the death penalty is not an appropriate sentence in this case.
An aggravating circumstance . . . increases the gravity of a crime or the harm to a victim.
BETTER CONCEPT • • • • • • Mitigation = The Case for Life Mitigation = Advocacy Mitigation = Themes Mitigation = Story of a life Mitigation = Communication “The development and presentation of mitigation evidence must be incorporated into the defense case at all stages of the proceedings from the moment the client is taken into custody.” • Storytelling is a fundamental part of legal practice • Effective storytelling is "precise and individualized."
Some Types of Mitigation (per ABA) • • • • • • • “diverse frailties of humankind” “positive adjustment to incarceration” “realities of incarceration” “actual meaning of a life sentence” “capacity for redemption” “remorse” “execution impact upon others”
More types of Mitigation per ABA • • • • • • “mental health vulnerabilities” “explanation of patterns of behavior” “negation of aggravating evidence” “positive acts or qualities” “responsible conduct in other areas of life” “degree of moral culpability”
Themes of Mitigation • • • • • • • Defendant’s Life Has Value Defendant’s Humanity Diminished Responsibility Trauma (abuse/neglect/violence) Remorse Rehabilitation Redemption A LWOP Sentence is true punishment A LWOP sentence means no threat to society
The Mitigation Specialist • • • • • • Trained to collect and analyze life history Includes social/environmental factors “Cultural Competency” 36 HOFSTRA L. REV. 883 “Confidential, relevant, reliable information” “Furnished in a form useful to counsel” “fully compensated commensurate with provision of high quality legal representation” • The mitigation specialist is the glue that holds everything together.
Who is the Audience? • • • • • • • Client and their family Victim’s family State Attorney Trial Judge The Jury Appellate courts The Community
Client and Family • • • • • • Arrest for murder is a tragedy for client and family. Client is frequently very depressed or impaired. Family is angry or sad or possibly hostile. Must demonstrate our commitment to gain trust Mitigation is “an opportunity at life” Consultation with the client is vastly more time consuming and demanding in a death penalty case • Sometimes the best chance to resolve a case is early.
Victim’s Family • At the first, respectful opportunity, defense counsel should introduce self to victim’s family. • This should be done as a professional and without ulterior motives. • Answer questions honestly as you can. • Consider victim/offender reconciliation.
“I thought the death penalty was the answer until I saw how Court worked”
United States Attorney USAM 9-10.080 In any case in which the United States Attorney is considering whether to request approval to seek the death penalty, the U. S. Attorney SHALL give counsel for the defendant a reasonable opportunity to present any facts, including any mitigating factors, for the consideration of the United States Attorney.
State Attorney • Be cognizant of their deadline under Fla. R. Crim. Pro.3.202(a) (45 days from arraignment) • Mitigation Packet – not just a list of facts but a comprehensive introduction to the story • “At the charging stage of a capital case, effective storytelling has its place, even with hardened prosecutors who have heard many similar stories before.”
Trial Judge • In Florida (State Court) the trial judge is the ultimate decision maker. • Don’t wait to make your case for life. • “Legal” mitigation may sway Judge. • Use pretrial hearings and funding requests to educate the judge
Mitigation During Jury Selection • “Front-Loading Mitigation into Voir Dire” by Brooke Butler, Florida Defender Spring 2012 • Make sure the potential jurors understand completely the aggravating nature of the case so that each juror could give us an honest assessment of whether any mitigation would matter. • “Any juror to whom mitigating factors are... irrelevant should be disqualified for cause” Morgan v. Illinois, 504 US 719 (1992) • Juries with more diversity among the jurors, on the other hand, appear to discuss evidence more thoroughly and deliberate longer..
Mitigation during Trial • “Any circumstance of the offense that reasonably may indicate that the death penalty is not an appropriate sentence.” • Examples: Lack of planning/premeditation • Defendant cooperated with police/confessed • Provocation, imperfect self defense, accident
Prosecutor’s Theme • A heinous crime has been committed by an essentially bad or evil person who should pay the ultimate penalty. Because his crime is regarded as entirely the product of his free and autonomous choice-making, unencumbered by past history or present circumstances, the defendant alone is seen as fully culpable for it.
Penalty Phase Opening • Tell the Story: Outline the themes so that the jurors can make sense of witnesses. • Establish your counter narrative • An effective opening statement in the sentencing phase of a capital trial must, then, develop the nature and character of the people involved- what kind of people they are and how they react to human problems.
Penalty Phase Evidence • • • • • • Who will tell the story?: Mitigation Expert? (probably not) Family members Anecdotes Expert witness “The goal of mitigation investigation was to get the jury to see Client as we saw him.”
Avoid Messages • Messages that stereotype • Messages that alienate Defendant from jury • Danger messages
STORYTELLING IN PENALTY PHASE JURY INSTRUCTIONS • In federal death penalty practice, and in some other jurisdictions, defense counsel has the opportunity to craft proposed jury instructions on factors in mitigation. • Another opportunity for creative storytelling, and one that is closely tied to the specific story the jury is being asked to accept.
On Appeal “If mitigation evidence in the record raises real questions about whether the defendant truly deserves the death penalty, it becomes a lot easier to find error” Former Alabama Appellate Court (1977 – 95) Justice William Bowen Jr.
Post Conviction Audience • Make sure the mitigation story is part of the press narrative. • Use social media to tell mitigation story?
In China, public outcry softens sentence for Wu Ying
More than 3.7 million tweets about Wu Ying by Tuesday afternoon She won widespread public sympathy – not only because she had shown remarkable entrepreneurial zeal in parlaying a single hairdressing salon into one of the largest private firms in China but also because her plight underlined how hard it is for private businesspeople here to raise funds through official channels. Chinese banks favor state owned enterprises, forcing millions of ordinary businesses to turn to illegal private sources of capital.
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