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."
Defense lawyers first started using mitigation specialists in the 1970s and early 1980s, depending on the funding available in their jurisdictions, and they became more commonplace by the late 1980s. Currently, there are about 200 people who call themselves mitigation specialists working in the U.S. and their numbers are increasing. While the majority are social workers, many states don't require specialists to have any particular training, prompting critics like Kevin Lyons, state attorney for Peoria County, Ill., to quip: "Got a car? Out of work? We got a job for you," he says. "Often [mitigation specialists] have no relevant credentials of any kind. There's no licensing procedure. There's no bar. There's no board."
That is slowly changing, though, as capital defenders work on establishing professional protocols, setting up training workshops, and encouraging colleges to launch specialized programs. Cornell University, for example, offered an undergraduate mitigation course for the first time this year.
In the meantime, there is a chronic shortage of experienced specialists, says Elisabeth Semel, a clinical professor at Boalt law school at the University of California at Berkeley and director of the Death Penalty Clinic, which represents people on death row. In Alabama, for example, there are only three or four specialists to handle some 400 murder cases that qualify for the death penalty. "It's a long-standing problem," says Semel. "[The work] is very grueling. It's months and months of driving, knocking on people's doors and asking them to talk about things they've spent whole lives trying to hide."
The biggest challenge is getting courts to authorize enough funding; the range of budgets is shockingly wide, says Robert Spangenberg, who runs a private criminal justice consulting firm in Newton, Mass. Whereas a decent public defender's office might hire a couple of full-time staffers to do mitigation work, some states require court-appointed counsel to ask judges to approve every expense. "A judge has lots of discretion in whether he's even going to give you [a specialist] and how much money he's going to give you," Spangenberg says. For example, the defense might receive $60,000 for a mitigation budget in one state but only $5,000 in another. Or some judges will approve less than 100 hours of work -- although some cases take up to a year to properly investigate, say defense lawyers -- or pay for travel only within a certain jurisdiction. "I get calls from [specialists] saying, 'I can't do my job. What do I do?'" says Maher. (Even their pay varies drastically; specialists can earn anywhere from $30 to $100 an hour.)
If Zacarias Moussaoui had been prosecuted by a state instead of the federal government, the defense team would never have received the money to get the information it did, explains Zerkin, Moussaouis attorney, adding that in Virginia, where the federal case was tried, the defense is unlikely to even get a specialist in a state case, let alone an adequate budget. "Many judges think this can be done cheaply," says Zerkin. "They have no concept of what a mitigation investigation should be. This is critical information in deciding who lives and who dies. The public has no idea how cheaply we fund capital defense cases at all."
On the other hand, Lyons contends that the judges in his state, Illinois, are so nervous about the possibility of an appeal that they approve "egregious" budgets, which the defense treats like an "open-ended grocery store," Lyons argues. "They say, 'There's the grocery store. Get what you want. And I'll give you the check.'"
The debate over funding arrives at a time when death sentences are dwindling. In 2004 and 2005, juries sentenced 125 people to death. That's compared to an average of 300 capital sentences annually in the 1980s and 1990s, says Richard Dieter, executive director of the Death Penalty Information Center, in Washington, D.C., which opposes capital punishment. Dieter attributes the drop to the public's discomfort with recent exonerations that found 123 death row inmates innocent of their crimes, thanks in part to DNA evidence. Also, he says there is anecdotal evidence to suggest that fewer prosecutors are seeking the death penalty due to the high costs of trying those cases, and because juries more often vote for a sentence of life in prison with the possibility of parole.
Still, others credit the falling rates to the quality of mitigation evidence. "When juries are presented with a detailed social history that shows how the defendant's life moved in the way it did, they respond to it," explains Haney, the psychology professor. "It has to be a true story as best as you can tell it. In my experience, when presented properly, it's overwhelmingly effective."
Mitigation specialists are historians, trying to piece together a life story. Gathering those details is often a taxing and frustrating job. Mitigation specialists have to ingratiate themselves to families who are often distrusting or unfamiliar with the legal system. They sometimes have to convince parents to confess atrocious things they did to their children. They have to talk to relatives in hopes of understanding why the defendant turned out differently. Some specialists carry baby pictures of their clients during the investigation to remember who they once were.
"You have to get juries to step into the shoes of client and family," explains Nancy Pemberton, a San Francisco lawyer and mitigation specialist. "It's harder to impose a death sentence on a human being. It's easier on a defendant or a homicidal monster."
The first challenge of many mitigation specialists is gaining permission from their clients to obtain information about them in the first place, since many want to protect their families. Pemberton says she once had a client who tried to prevent her from talking to his mother. "The client may feel horrible they have inflicted this shame on the family," she says. "So in a mistaken sense of honor, of doing the right thing, they try to prevent you from developing mitigation."
But specialists have an ethical obligation to investigate, and clients don't have much say. Jerry Schwartzbach, a defense attorney from San Jose, Calif., says one of his clients, on trial for a double murder, told him not to go near his family. He told Schwartzbach that his mistakes were his own and he had to face the music. "If you get executed, you're going to be dead and gone, but the people who love you will have to live for the rest of their lives with what they did or did not do to save your life," Schwartzbach says he told his client. "And you have no right to make that decision for them." Schwartzbach eventually convinced several family members to testify on his client's behalf, which helped "paint a complete picture of him." He received a life sentence.
Even with cooperation, sussing out old memories is problematic -- especially if some family members' recollections are made even fuzzier by mental illness or substance abuse. So specialists aim to corroborate information with several sources. For example, Denny LeBoeuf, a capital defender and mitigation investigator from New Orleans, says she was working on a case where she believed the mother of the defendant was physically abused by a series of boyfriends. The mother had tried to hide the abuse by seeking medical help at different emergency rooms, but hospital records of a broken rib at one place and a broken leg at another told the story. Sometimes specialists will interview family members after learning something from a neighbor or relative. "When they know you've got the secret, they'll talk," says Pemberton.
There are no shortcuts, stresses LeBoeuf. "Specialists spend enough time to get the truth out," she says. "It's just talking to people over a lot of kitchen tables, drinking a lot of cups of Sanka." The hardest discussions are when the person being interviewed knows exactly how the defendants suffered -- because it was at their hands. "I often hear, 'I didn't commit a crime. Why do you want all this info from me?'" says Pamela Blume Leonard, a mitigation specialist based in Atlanta. The goal is to convince them that they have vital information that can help the accused. Some people willingly offer it up; for example, the stepfather of Susan Smith, who was convicted in 1995 of drowning her two young boys in a lake, admitted in court that he sexually molested her. Others simply shut down.
Pemberton, the San Francisco lawyer and mitigation specialist, says that people are more likely to open up when they don't feel judged. "I say, 'This must have been hard for you, too,'" she says, explaining that often abuse is multigenerational.
In one case, though, the parents' refusal to participate in the mitigation investigation told the jury plenty about his client's childhood, explains John Blume, professor at Cornell Law School and director of their death penalty project (and also Pamela's brother). That happened in the case of a 19-year-old developmentally disabled man who had killed a 10-year-old boy. Blume says the specialist uncovered evidence that the defendant was forced to live in a garbage dump after his father kicked him out of the house. The defense relied on other witnesses, school psychologists and teachers, but his own parents didn't try to save his life.
"Dad wouldn't talk to us, mom was non-cooperative. It made the point that no one was there for this kid," says Blume. "No one stood up for him when he was young, when he was a teenager, or when he was convicted of a capital crime."
Stories of abuse and neglect are heartbreaking, agree critics, but they don't always shed light on why people kill. Jonathan Frank, a former prosecutor who worked for 16 years in the Brooklyn district attorney's office, doesn't think the bad childhood of Darrel Harris explains why he shot three people in a bar in the Bedford-Stuyvesant section of Brooklyn in 1996. "What happened when he was 6 or 7 may have been terrible, but it was no mitigation in my view for what he did when he murdered those people," says Frank, who is now a partner at Skadden, Arps, Slate, Meagher & Flom in Manhattan. Harris' dysfunctional past also doesn't explain why his siblings, who grew up in the same house, didn't become criminals, says Frank. (The prosecution in the Moussaoui case also made the point that Zacarias' brother was a successful engineering teacher.)
When Lyons, the D.A. from Illinois, was prosecuting the case of a teen who murdered a police officer, he was amazed to hear mitigation evidence that the defendant suffered in school because he was short. "I said to the jury, 'This entire charade of asking you to spare his life is that he never got to feel a part of America because he was the smallest kid in his class. I, too, was the smallest in my class, and I'm a D.A.,'" he says.
There's often no limit to the scope of evidence that can be presented, says Josh Marquis, district attorney for Clatsap County, Ore., and vice president of the National District Attorney's Association. In one capital case, he was surprised when the defense introduced evidence that the defendant's grandfather beat his father. "I had a hard time understanding how abuse suffered before he was on the earth could be relevant," he says, "but the judge allowed it."
But Semel, the Boalt law school professor, emphasizes that the sentencing phase isn't about excusing a crime -- since a defendant has already been convicted. "In the penalty phase, the only thing that is relevant is the explanation for what he has done and who he is as a human and how he got from birth to his place in the courtroom," she says. "The penalty phase is the case for life."
That case may not matter, since in one study, approximately half of jurors admitted they had already decided a defendant's punishment during the guilt phase of the trial, says William Bowers, who in 1991 started the Capital Jury Project, which has surveyed nearly 1,200 jurors from 353 capital trials in 14 states. "Our work reveals that jurors often disregard mitigation partly because they're so outraged about the crime; that's partly why they make the punishment decision before," he says. "The mitigation fails. It just fades from their consciousness." In fact, jurors may be so predisposed to death -- they have to be willing to impose that sentence to be qualified to sit on the jury in the first place -- that they end up converting mitigating arguments to aggravating evidence.
For example, if the defense claimed that a client was young and could contribute to society, jurors might think, "Oh, he can get out and do it again!" he says. Likewise, mental illness could be seen as a sign of danger, says Bowers, explaining that the majority of his work was done in the mid-'90s when 10 of the 14 states studied gave jurors a choice of life with the chance of parole. However, even in the states that offered jurors the chance to sentence someone to life without the chance of parole (most states have that choice now), jurors still believed the defendants would get out.
So what does work with jurors? An incredibly compelling, thorough, believable narrative that will give them a chance to set aside their anger and loathing to even consider the case for life, says Scott Sundby, professor of law at Washington and Lee University, who participated in the Capital Jury Project and specializes in capital jury behavior.
Even with jurors' open ears, however, the defense's job is daunting -- the majority of jurors believe that people are responsible for their actions, as Sundby learned in juror interviews. "They believe that even under adverse circumstances, every individual has the choice to do good or bad," says Sundby, who is also the author of "A Life and Death Decision: A Jury Weighs the Death Penalty." "When presented with strong mitigation evidence, they say, 'Well, he had a bad childhood. A lot of people have had a bad childhood, and they didn't murder.'"
The jury, then, must be convinced that the defendant never had a chance to escape his lot in life, he says. The stories that resonate are truly horrific accounts of sexual abuse, terrible beatings or parental breaches, such as a mother working as a prostitute or a father putting the mother in the hospital and molesting the sisters -- coupled with reports that the defendant has a low level of intelligence, or was tormented as a child.
During deliberations, jurors often ask for butcher block paper so they can chart out the defendant's life course. "They consider whether the client made the choice to go down this path. If they determine he did, then they come back with death," says Sundby. "But if they feel in that timeline that there was no time when he could have escaped the downward spiral, they come back with life."
As defense teams continue to improve their ability to tell that story and mitigation specialists are better trained to collect the pieces of the plot, jurors will have an even harder time doling out death sentences, predicts professor Haney.
"Most juries are capable of great compassion ... if [they] can empathize with the traumatic events that defendants have experienced," Haney says. "You have to get them to care."