For the past several months, we watched the Jodi Arias trial and saw a women sitting at the second defense table. While it was constantly pointed out that she was the Mitigation Specialist for the defense team, some still seemed to be confused as to her function. She is not an attorney. She has nothing to do with delving into the minds and mannerisms of the jury to find a sneaky way to get the defendant off. Her job is to determine the mitagators that the defense team can best use during the penalty phase of a death penalty case well in advance of the trial beginning. She is also a handler for the defendant. Part of her job is to build a trusting relationship with the defense and keep her as calm, cool and collected as possible. See below for an elaborate outline of her duties.
What is a Mitigation Specialist in a Death Penalty Case?
6-3-2010 According to the American Bar Association [ABA] Guidelines for the
Appointment and Performance of Defense Counsel in Death Penalty
Cases (Rev. Ed. Feb. 2003), a mitigation specialist (if not more than
one) is a mandatory part of the defense in any capital case.
In fact, the ABA Guidelines require every criminal defense team facing a capital punishment sentence have at the minimum two attorneys, a private investigator, and a mitigation specialist.
Failure to include a mitigation specialist in a death case is arguably
per se ineffective assistance of counsel, violating the defendant’s rights
under both the Sixth and Eighth Constitution according to the United
States Supreme Court. Therefore, part of the expense of today’s indigent defense in a
death penalty case mandates the expenditure of hiring a competent and capable
mitigation specialist. It’s more than a suggestion by the national
bar association; it is the law of the land. A mitigation specialist is not another
attorney, death-qualified or not, on the defense team. Investigators and
attorneys are easily understood – their roles are wellknown, their backgrounds,
education, and expertise understood. But exactly what is a “mitigation specialist” –
does the public at large know who these professionals are, how much they cost, and
why they are needed?
The ABA Guidelines detail the vital and imperative role of a mitigation specialist in the
criminal defense team’s fight against the State’s desire to seek the death penalty,
should a defendant be found guilty and his or her trial reach the penalty phase:
A mitigation specialist is also an indispensable member of the defense team throughout all capital
Mitigation specialists possess clinical and information-gathering skills and
training that most lawyers simply do not have. They have the time and 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 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.
Perhaps most critically, having a qualified mitigation specialist assigned to every
capital case as an integral part of the defense team insures that the presentation
to be made at the penalty phase is integral into the overall preparation of the
case rather than being hurriedly thrown together by defense counsel still
in shock at the guilty verdict. 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 specialists usually have advanced education in the form of graduate
degrees in a form of social work or psychology as well as a background in criminal
justice, particularly capital defense matters. Within their skill set, they have an ability
to gather and analyze voluminous amounts of psychological, psychiatric, and other
mental health documentation and records, as well as police records, school records,
and family histories. Mitigation specialists arealso expert at dealing with people in a
non-confrontational manner. They interview and
discuss the defendant with his family, friends, former employers, teachers, physicians,
counselors, and psychiatrists. Their ability to work with people in difficult situations
and in discussing often painful or embarrassing situations requires a particular finesse.
The Size of the Task Performed by the Death Penalty Mitigation Specialist
Consider the enormity of the job. Each mitigation specialist on a death penalty case
must identify, locate, and retrieve all the records ever generated about the defendant,
along with all the records that have been generated about their immediate and
extended family members. These include but are not limited to (for the defendant as
well as family members):
2. hospital birth records
3. medical records, including private physicians, clinics and hospitals.
4. school records
5. social service records
6. records from agencies and foster homes
7. juvenile records
8. adult criminal records
9. probation and parole records
10. employment records
11. psychological and psychiatric records
12. military records
The job does not end with gathering boxes and boxes of documents. The mitigation specialist
undertakes comprehensive, lengthy, and sensitive interviews that often deal with
personal, private issues with the client and as many individuals as possible who have
known the client, such as:
1. family members
6. church members
7. Sunday School teachers
10. spouses, ex-spouses
11. boyfriends/girlfriends and ex-boyfriends/girlfriends
14. mental health providers (psychiatrists, psychologists)
15. social services personnel
16. military peers
17. probation officers
18. parole officers
21. police officers.
Once they have the documentation collected and the interviews completed, and with
this a detailed, coordinated investigation into the defendant’s life history, the mitigation
specialists must take all they have learned and report to the trial lawyers the issues that
may need additional exploration by other professionals. Doctors may need to assess I.Q.
Investigators may need to delve into new facts of the case. Psychiatrists may need to
determine the impact of childhood abuse.
Working together with the rest of the team, the mitigation specialist works to find and
fully understand the factual circumstances of the defendant’s life that allow the mitigation
factors (“mitigators”) under state or federal law to apply in the case. In doing so, the
importance of the mitigation specialist cannot be underestimated.
Mitigation specialists take the enormous amount of information they obtain – both in
interviews and in documents – and compile a final, detailed mitigation investigation
which opines on “family history and social history to explain its impact on the
defendant’s current functioning.”
Oftentimes, they may be asked to take the witness stand to explain their actions, define
their conclusions, and defend their opinions against State challenge.
Defense lawyers rely upon the mitigation specialist to find and flesh out the mitigation
fact patterns that will be presented at trial. The failure of the mitigation specialist to
perform their stressful, expansive, and detailed tasks can mean the difference between
life and death.