How to humanize a killer

Defense teams in capital cases research their clients' childhood -- and conduct often-harrowing interviews with the clients' families -- to evoke sympathy from juries. Critics call mitigation evidence the "abuse excuse."

By Sarah Elizabeth Richards

Read more: Death Penalty, Life

June 7, 2006 | During the sentencing phase of Zacarias Moussaoui's trial last month, members of his defense team were assigned a monumental task: They had to create a sympathetic portrait of the only person tried on American soil in connection with the 9/11 terrorist attacks. They had to convince the jury to look beyond his hostile demeanor and anti-American vitriol, and consider mitigating evidence that helped explain how he ended up the way he did. In short, they had to humanize a confessed al-Qaida terrorist, and convince a jury to spare his life.

"In order to understand who he was now, you have to understand what came before," says Gerald Zerkin, assistant federal public defender for the eastern district of Virginia, who represented Moussaoui. "That's how I presented it to the jury."

It was an effort that required a team of American and foreign lawyers, interpreters, and perhaps most important, mitigation specialists, trained investigators who research a defendant's personal history -- and who are becoming increasingly important in capital cases. They traveled overseas five times over several years, to France, Morocco and England, in search of family, friends, school and medical records -- any information that might shed light on Moussaoui's past.

In the beginning, the defense learned a lot from from Abd Samad Moussaoui's book "Zacarias: My Brother," which details the racism and poverty of their youth -- including time spent in orphanages. But they needed more. After years of persistence, they finally convinced Moussaoui's other siblings, two sisters, both of whom suffer from schizophrenia, to give videotaped statements that were shown in court. The women described what it was like to live in a violent, chaotic apartment in a French housing project, how they often went hungry, and how they were terrorized by their alcoholic father. They also called their baby brother -- the same man who had testified in court that he wished more people had been killed on 9/11 -- the "little sweetheart" of the family.

These anecdotes and others -- including accounts by his mother of how her husband routinely beat her and by his childhood friends who told how the family of Moussaoui's former fiancée refused to let her marry a "dirty Arab" -- helped create a context for his deplorable behavior. They also showed the pervasiveness of mental illness in his family. (Moussaoui's father was so medicated for a psychotic disorder that he was unable to speak coherently to the defense.)

Jurors did not reveal why they decided not to sentence Moussaoui to death. But knowledge of his background clearly played a role. According to the verdict form, jurors agreed mostly on the importance of two mitigating factors out of two dozen presented by the defense. The first was that Moussaoui's "unstable early childhood and dysfunctional family resulted in his being placed in orphanages" and how his impoverished, unstable home life and hostile relationship with his mother forced him to leave home at an early age. The second read that his father had a "violent temper and physically and emotionally abused his family."

"[His past] was relevant," says Zerkin. "Some of the jurors even read his brother's book. They took the trouble to look at it. They didn't just dismiss it."

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When the Supreme Court reinstated capital punishment in 1976, it ruled that courts must hold a separate sentencing phase during which lawyers offer the jury guidance when evaluating a life-or-death verdict. Jurors are instructed to consider the prosecution's aggravating factors or "case for death" as well as the defense's mitigating factors or "case for life." "The general idea is that you have to present every piece of possible information about the client so the jury can make the choice," explains Robin Maher, director of the American Bar Association's Death Penalty Representation Project. In the past six years, the Supreme Court has thrown out three capital sentences because the defense failed to adequately research or present a defendant's background, and some experts believe that such information was at least partially responsible for helping high-profile defendants such as Susan Smith, Lee Malvo and Terry Nichols avoid death sentences.

Critics charge that mitigation evidence amounts to an "abuse excuse," arguing that even a terrible childhood can't excuse hideous acts of murder. They also claim that the information is expensive to collect, unreliable because it's often based on foggy memories and distracts jurors from their mission by focusing on the defendant's sad life instead of his or her actual crimes and the pain of the victims. But those who support the increased focus on mitigation evidence say it is essential in helping jurors make decisions about life and death and lambaste many states' failure to adequately fund investigations. As a result, they say, there is a huge disparity in the quality of representation for people facing the death penalty.

In 2002, the high court reversed the capital sentence of Maryland death row inmate Kevin Wiggins after finding that the defense's failure to tell his life history and details of sexual abuse by his mother and foster parents violated his right to effective representation. "Given the nature and extent of the abuse, there is a reasonable probability that a competent attorney, aware of this history, would have introduced it at sentencing, and that a jury confronted with such mitigating evidence would have returned with a different sentence," read the opinion.

And in June last year, the court ordered a new sentencing trial for Pennsylvania death row inmate Ronald Rompilla because his lawyers did not investigate records showing possible evidence of mental retardation and an abusive childhood. The court ruled that even though Rompilla and family members denied the existence of such evidence, the defense was obligated to do a thorough investigation anyway.

"The courts said you can't do a half-baked version," says Craig Haney, professor of psychology at the University of California at Santa Cruz and author of "Death By Design: Capital Punishment as a Social Psychological System." "Now, [mitigation] is not only useful and valuable, but it's required."

Such negligence among defense teams prompted the American Bar Association to articulate a national standard in 2003 by revising its guidelines on how the defense should handle capital cases. "It was not uncommon to see trial transcripts where there was no presentation of mitigation evidence ... they would simply call the client's mother to the stand to plead for their child's life," says Maher. "That was the extent of information the jury had had to make a decision between life and death." The new ABA guidelines call for a defense team comprising two lawyers, an investigator and a mitigation specialist, who is trained to identify the forces that influenced a defendant's personality and behavior -- by ferreting out sensitive information from his or her family members and locating and analyzing police, medical and school records, among other documents. A good specialist also knows how to recognize developmental disabilities, mental illness, child abuse and substance addiction. "Most [lawyers] don't have the special skills and training that a qualified mitigation specialist possesses," stresses Maher. "A lawyer doesn't have the training to sit with a family for 20 hours to get very painful embarrassing information that can save a client's life."

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