Making Mitigation Work at Every
520 12th St. W. #203
Bradenton, Fl. 34205
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
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.
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
“diverse frailties of humankind”
“positive adjustment to incarceration”
“realities of incarceration”
“actual meaning of a life sentence”
“capacity for redemption”
“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
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
Who is the Audience?
Client and their family
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.
• At the first, respectful opportunity, defense
counsel should introduce self to victim’s
• 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
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.
• 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.”
• 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
• “Any juror to whom mitigating factors are... irrelevant
should be disqualified for cause” Morgan v. Illinois, 504 US
• Juries with more diversity among the jurors, on the other
hand, appear to discuss evidence more thoroughly and
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
• 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)
“The goal of mitigation investigation was to
get the jury to see Client as we saw him.”
• Messages that stereotype
• Messages that alienate Defendant from jury
• Danger messages
STORYTELLING IN PENALTY PHASE
• 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.
“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
• 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.