10/7/2015Gulf Region Advocacy Center New Habits of Mind: Learn to Work in a Team The ABA Guidelines make clear that a capital defense is to be undertaken by a team. ABA Guidelines 4.1.A. The defense team must be assembled “as soon as possible” after lead counsel is assigned. At a minimum, the team must be comprised of two attorneys, an investigator, and a mitigation specialist. Guideline 10.4(C); commentary to Guideline 10.7 at 82

ABA Guideline: 4.1.A. “The defense team should consist of no fewer than two attorneys..., an investigator, and a mitigation specialist.” Commentary: “… the prevailing national standard of practice forbids counsel from shouldering primary responsibility for the investigation. Counsel lacks the special expertise required to accomplish the high quality investigation to which a capital defendant is entitled and simply has too many other duties to discharge in preparing the case.”

The Multi-Disciplinary Team: What to Expect and Demand from Each Other

Start Immediately!! Assemble the Team The defense team must be assembled “as soon as possible” after lead counsel is assigned. Commentary to Guideline 10.7 at 82 Don’t wait for state to seek death; Don’t wait to seek funds for all experts at once.

Collaborate as a Team in Choosing and Directing Other Experts Assistance in Identifying the type of Mental Health Expert that is Appropriate and in Choosing that Expert and Working with Her/Him. Participate in writing clear referral question, controlling the scope of the evaluation, making sure testing is appropriate.

Attorneys MUST Assemble a Team and Draw on Multi-Disciplinary Skills: Mitigation Specialists (NOT experts) Victim outreach Spiritual guides Consulting psychiatrists/psychologists Evaluating neuropsychologists Developmental specialists Education specialists Cultural Experts Trauma Specialists Psychopharmacologists Prison adaptation experts Testifing experts

HOWEVER....Attorneys MUST Drive the Bus: Delegation without Abdication No one-stop shopping Experts cannot run the show Attorneys and Mitigators working collectively MUST: Select appropriate experts; control testing and evaluations; Write careful referral questions; control access to information.

HOWEVER....Attorneys MUST Drive the Bus (2): Don’t Rely upon client for accurate history Don’t Rely upon client’s family for accurate history Don’t Allow client or family to guide investigation Don’t confuse “respect” with negligence.

THUS....Attorneys MUST Learn New Things: Mitigation and Investigation Protocols Appropriate Evaluation and Testing Standards Dangers and Benefits of Diagnosis Dangers and Benefits of Different Areas of expertise. Accept that Client’s “mask” Recognize signs and symptoms (but don’t diagnose!)

10/7/2015Gulf Region Advocacy Center The Mitigation Team Cannot just subcontract entire processCannot just subcontract entire process Avoid: “I need someone to shrink my client”; “Go see my guy and tell me what you think or what my defense is.” Attorney, mitigation investigator, culpability investigator, paralegal, consulting and testifying experts, spiritual advisor, community groups, and others.Attorney, mitigation investigator, culpability investigator, paralegal, consulting and testifying experts, spiritual advisor, community groups, and others.

10/7/2015Gulf Region Advocacy Center Who/What is a Mitigation Specialist? Mitigation investigator is NOT a testifying witness, but another defender.Mitigation investigator is NOT a testifying witness, but another defender. “The defense team should contain at least one member qualified by training and experience to screen individuals for the presence of mental or psychological disorders or impairments.”“The defense team should contain at least one member qualified by training and experience to screen individuals for the presence of mental or psychological disorders or impairments.” Guideline 4.2(A)(2).Guideline 4.2(A)(2).

10/7/2015Gulf Region Advocacy Center Role of a Mitigation Specialist Mitigation Specialists must possess basic knowledge about capital defense law affecting their work,Mitigation Specialists must possess basic knowledge about capital defense law affecting their work, –including an understanding of the capital charges and available defenses, applicable capital statutes and constitutional principles, applicable discovery rules at the various stages of capital litigation, applicable evidentiary rules, procedural bars and door-opening doctrines, and rules affecting confidentiality, disclosure, privileges and protections. Mitigation Specialists should know how to obtain and analyze all documents and evidence relevant to their investigation.Mitigation Specialists should know how to obtain and analyze all documents and evidence relevant to their investigation. Mitigation Specialists must be skilled interviewers, who can establish rapport with witnesses, the client, the client’s family and significant others. Mitigation Specialists must be trained to recognize and overcome barriers between the client and the defense team, and have the skills to help the client with the emotional impact of painful disclosures.Mitigation Specialists must be skilled interviewers, who can establish rapport with witnesses, the client, the client’s family and significant others. Mitigation Specialists must be trained to recognize and overcome barriers between the client and the defense team, and have the skills to help the client with the emotional impact of painful disclosures. Mitigation Specialists must have specialized training in identifying, documenting and interpreting symptoms of mental impairments; potential signs of neurobiological deficits; long-term consequences of deprivation and neglect during developmental years; social, cultural, environmental, and ethnic influences on behavior; and the presence, severity, and consequences of exposure to trauma.Mitigation Specialists must have specialized training in identifying, documenting and interpreting symptoms of mental impairments; potential signs of neurobiological deficits; long-term consequences of deprivation and neglect during developmental years; social, cultural, environmental, and ethnic influences on behavior; and the presence, severity, and consequences of exposure to trauma. Your mitigation specialist should speak your client’s native language.Your mitigation specialist should speak your client’s native language. Mitigation Specialists must have the training and ability to organize the information gathered during the investigation and must be able to communicate the information through the use of social histories, genealogies, chronologies, and cultural, socioeconomic, environmental, and religious studies of the client in order to aid counsel in developing an affirmative case for sparing the defendant’s life.Mitigation Specialists must have the training and ability to organize the information gathered during the investigation and must be able to communicate the information through the use of social histories, genealogies, chronologies, and cultural, socioeconomic, environmental, and religious studies of the client in order to aid counsel in developing an affirmative case for sparing the defendant’s life.

10/7/2015Gulf Region Advocacy Center Skills of A Mitigation Specialist COMMENTARY TO ABA GUIDELINE 4.1 Mitigation specialists possess clinical and information-gathering skills and training that most lawyers simply do not have. They have the time and the ability to elicit sensitive, embarrassing and often humiliating evidence (e.g., family sexual abuse) that the defendant may have never disclosed. They have the clinical skills to recognize such things as congenital, mental or neurological conditions, to understand how these conditions may have affected the defendant’s development and behavior, and to identify the most appropriate experts to examine the defendant or testify on his behalf. Moreover, they may be critical to assuring that the client obtains therapeutic services that render him cognitively and emotionally competent to make sound decisions concerning his case.COMMENTARY TO ABA GUIDELINE 4.1 Mitigation specialists possess clinical and information-gathering skills and training that most lawyers simply do not have. They have the time and the ability to elicit sensitive, embarrassing and often humiliating evidence (e.g., family sexual abuse) that the defendant may have never disclosed. They have the clinical skills to recognize such things as congenital, mental or neurological conditions, to understand how these conditions may have affected the defendant’s development and behavior, and to identify the most appropriate experts to examine the defendant or testify on his behalf. Moreover, they may be critical to assuring that the client obtains therapeutic services that render him cognitively and emotionally competent to make sound decisions concerning his case. The mitigation specialist compiles a comprehensive and well-documented psycho-social history of the client based on an exhaustive investigation; analyzes the significance of the information in terms of impact on development, including effect on personality and behavior; finds mitigating themes in the client’s life history; identifies the need for expert assistance; assists in locating appropriate experts; provides social history information to experts to enable them to conduct competent and reliable evaluations; and works with the defense team and experts to develop a comprehensive and cohesive case in mitigation.The mitigation specialist compiles a comprehensive and well-documented psycho-social history of the client based on an exhaustive investigation; analyzes the significance of the information in terms of impact on development, including effect on personality and behavior; finds mitigating themes in the client’s life history; identifies the need for expert assistance; assists in locating appropriate experts; provides social history information to experts to enable them to conduct competent and reliable evaluations; and works with the defense team and experts to develop a comprehensive and cohesive case in mitigation. The mitigation specialist often plays an important role as well in maintaining close contact with the client and his family while the case is pending. The rapport developed in this process can be the key to persuading a client to accept a plea to a sentence less than death.The mitigation specialist often plays an important role as well in maintaining close contact with the client and his family while the case is pending. The rapport developed in this process can be the key to persuading a client to accept a plea to a sentence less than death.

10/7/2015Gulf Region Advocacy Center14 Which ethical rules apply to mitigation specialists and investigators? Rules for defenders, NOT those for any other professional roleRules for defenders, NOT those for any other professional role –Not rules for social workers or psychologists; –Not rules about treatment; –Not rules about clinical work; It is important to talk about this with the defense team from the start and make sure everyone is clearIt is important to talk about this with the defense team from the start and make sure everyone is clear The Sixth Amendment right to counsel and the sanctity of the Attorney-client relationship trump ANY rule or professional regulation requiring disclosure of confidential information (such as mandatory reporting of suspected domestic abuse).The Sixth Amendment right to counsel and the sanctity of the Attorney-client relationship trump ANY rule or professional regulation requiring disclosure of confidential information (such as mandatory reporting of suspected domestic abuse).

10/7/2015Gulf Region Advocacy Center15 Attorney-Client Privilege The purpose is to encourage full and frank communication between the defense team and the client. See Hunt v. Blackburn, 128 U.S. 464, 470, 9 S.Ct. 125, 127, 32 L.Ed. 488 (1888); Upjohn Co. v. U.S., 449 U.S. 383, 389 (1981).

10/7/2015Gulf Region Advocacy Center16 Attorney-client Privilege, cont’d. Privilege is the client’s right to forbid the disclosure of information shared between the client and his/her legal team and which relates to or facilitates legal representation.Privilege is the client’s right to forbid the disclosure of information shared between the client and his/her legal team and which relates to or facilitates legal representation. Privilege covers attorneys and their representativesPrivilege covers attorneys and their representatives Information may be in any formInformation may be in any form A communication is “confidential” if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.A communication is “confidential” if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.

10/7/2015Gulf Region Advocacy Center17 Not Just Client Communication A client has a privilege to prevent the lawyer or lawyer's representative from disclosing any other fact which came to the knowledge of the lawyer or the lawyer's representative by reason of the attorney- client relationship.

6.1 Workload Workload maintained at a level that enables counsel to provide high quality representationWorkload maintained at a level that enables counsel to provide high quality representation

10.1 Obligations re workload Counsel obligated to limit own caseloads “to the level needed to provide each client with high quality legal representation in accordance with these Guidelines”Counsel obligated to limit own caseloads “to the level needed to provide each client with high quality legal representation in accordance with these Guidelines”

This applies to mitigation specialists too Ask yourself: Do I personally have enough time to investigate this case thoroughly given the rest of my caseload?Do I personally have enough time to investigate this case thoroughly given the rest of my caseload? How much time will I have before the case goes to trial? Will the attorney fight for more time?How much time will I have before the case goes to trial? Will the attorney fight for more time? How much time will the court budget for payment? Will the attorney fight for more hours?How much time will the court budget for payment? Will the attorney fight for more hours?

Being clear about language and expectations Do not take an appointment before you know what you are agreeing to doDo not take an appointment before you know what you are agreeing to do Do not assume the attorneys understand what a mitigation specialist does. This is new to many of them too.Do not assume the attorneys understand what a mitigation specialist does. This is new to many of them too.

10.4 Commentary – consulting vs. testifying team members Counsel should structure the team to distinguish between those in “consulting” roles (covered by attorney-client and work- product protections) and those who will be called to testify (“thereby waiving such protections”)Counsel should structure the team to distinguish between those in “consulting” roles (covered by attorney-client and work- product protections) and those who will be called to testify (“thereby waiving such protections”) Talk about this with the attorneys. Do they expect you to testify?Talk about this with the attorneys. Do they expect you to testify?

10.7 Investigation Thorough and independent investigation “regardless of any statement by the client that evidence bearing upon penalty is not to be collected or presented”Thorough and independent investigation “regardless of any statement by the client that evidence bearing upon penalty is not to be collected or presented”

10/7/2015Gulf Region Advocacy Center Overview of Mitigation Process 1. Thorough social history intake 2. Scorched Earth Record Collection 3. Visiting Witnesses 4. Testing and Evaluation 5. Deal with Aggravation 6. Victim Outreach 7. Testifying Experts 8. Tell your client’s story

10/7/2015Gulf Region Advocacy Center What Mitigation Specialist Should Expect and Demand from Counsel Effective Communication Time to Do their Jobs Properly Reasonable Payment

Communication Protocols Must Cover Visiting Witnesses, –Basic methods, disclosures, note-taking, statements, memos Documents –Collection, Management, Processing, Dissemination Experts –When, Who, What, Sharing Information

Communication Protocols Must Cover, cont’d. Unsolicited admissions from client Undocumented prior acts of violence Uncharged criminal conduct Client’s access to discovery

Considerations in Developing Protocols – The Law Reciprocal Discovery at Trial Disclosure of Statements of Testifying Lay Witnesses Disclosure of Information RELIED UPON by Testifying Experts Disclosure in Post-Conviction

Considerations in Developing Protocols – Case Development Impact on Witness & Client Relationships Stages of the Investigation –Preparation, withholding judgment, avoiding paralysis Organizing, Digesting, Processing Information Sandbagging Your Own Defense

10.4 The Defense Team C(2). Counsel should make “appropriate contractual agreements with nonattorney team members” D. Counsel should demand “all resources necessary” for high-quality representation. If such resources are denied, counsel should make an adequate record to preserve the issue for further review.

10/7/2015Gulf Region Advocacy Center What Mitigation Specialist Should Expect and Demand from Counsel “Counsel at all stages should demand on behalf of the client all resources necessary to provide high quality legal representation. If such resources are denied, counsel should make an adequate record to preserve the issue for further review.” — ABA Guideline 10.4(D)

9.1 Funding and compensation Non-attorney members of the defense team should be fully compensated at a rate that is commensurate with the provision of high quality legal representation and reflects the specialized skills needed by those who assist counsel with the litigation of death penalty cases.

How much time and money will a typical case require?

Unreasonable expectations Cases vary and it is hard to quantify how much time will be needed in individual cases but the following are clearly unreasonable: Expecting you to prepare for a trial in less than six months Expecting you to complete an investigation for less than $30,000