Mitigating circumstances: Experts in showing why killers should live are now crucial in capital cases.
By Debbie Garlicki
The Morning Call
ALLENTOWN, Pa. — When lawyer Glenn Clark was appointed to defend an Easton man charged in a double homicide, he knew he needed to find out all he could about Fernando Luis Rivera -- from the time he was in his mother’s womb to that bloody day in 2003 when two men were shot.
A lawyer in Allentown for 26 years, he also knew he was going to need help.
Clark not only had to focus on how to convince a jury that Rivera didn’t shoot the Reading men in a plot to steal cocaine. He and another lawyer had to prepare for the possibility that Rivera would be convicted of first-degree murder and the next court phase -- a penalty hearing where the jury would decide if Rivera should live or die.
He got approval from a Lehigh County judge to hire two mitigation experts -- at county taxpayers’ expense -- to delve into Rivera’s past to find any shred of evidence that could persuade jurors to spare Rivera’s life.
Mitigation experts, who can be social workers, educators, psychologists or anthropologists, are becoming crucial as state appellate courts and the U.S. Supreme Court continue to demand more of lawyers mounting a defense in capital murder cases.
If defense lawyers don’t get medical, school, juvenile or other records, they risk being deemed ineffective.
More than the lawyers’ reputations are at stake. Death penalties can be -- and have been -- thrown out in Lehigh County and across the country because lawyers didn’t do “reasonable” investigations that could have meant the difference between life and death.
Courtroom archaeologists
Names that are not household words outside of legal circles, such as Strickland v. Washington, Williams v. Taylor and Rompilla v. Beard -- death penalty cases that reached the high court -- have changed the landscape of capital defense and contributed to the creation of a cottage industry of mitigation specialists.
The death penalty given to Kenneth Williams, convicted of fatally shooting a trucker in Lehigh County, was thrown out because his lawyers were found ineffective for not presenting mitigating evidence. So, too, with Ronald Rompilla, found guilty in 1988 of robbing and slaying an Allentown bar owner.
The specialists are archaeologists of sorts who dig and sift through decades of a defendant’s life to unearth clues to his personality and behavior. Was he sexually or physically abused as a child? Did his mother have a complicated pregnancy? Did he suffer brain damage? Was his father an alcoholic?
The answers might convince a jury that a defendant’s life should be saved.
In the world of the mitigation specialist, there is no such thing as too much information.
Specialist Phyllis Pautrat, 57, who was hired by Clark, traveled to Puerto Rico, where Rivera, 36, was born. She interviewed his parents, sister, a coworker at an electrical company, a family friend, a neighbor and a friend from church. To prepare a “biopsychosocial assessment,” she spent a lot of time with Rivera, who was in prison.
Pautrat typically reviews whatever records are available, including school files and medical reports. She investigates the background of defendants’ parents and questions their former teachers.
“It ends up that I’ll know more about them than they know about themselves,” Pautrat said.
She also helps attorneys to identify what other experts, such as psychiatrists and neurologists, might be needed.
Mitigation specialists are “forensic social workers” who help lawyers to determine what background evidence is important for a jury to know, said Michael Wiseman, who works on death penalty appeals for the Federal Community Defender for the Eastern District of Pennsylvania.
Wiseman and lawyers in his office have successfully gotten death penalties thrown out in many cases in the Lehigh Valley, including Williams’ and Rompilla’s, and around the state.
Mitigation specialists fill a gap that was left between defense investigators, who historically searched for witnesses and focused on case facts, and psychologists and psychiatrists, who examined defendants for mental deficiencies, said Sean O’Brien, associate professor at the University of Missouri-Kansas City School of Law.
Often skilled in human development, mitigation specialists “understand that a person’s life experiences shape who they are,” added O’Brien, a former chief public defender who has worked with the American Bar Association on guidelines for lawyers in capital cases.
Defense lawyers don’t have to hire mitigation specialists, O’Brien said, but he believes it is the most efficient way for a lawyer to meet his duty of doing a reasonable investigation into a client’s past.
In Rivera’s case, Pautrat identified possible witnesses who could testify in the penalty part of the trial about his childhood and illnesses, if it got to that point.
“Mitigation doesn’t excuse, but it explains how somebody got from A to B in their life where they might have committed such an awful act such as homicide,” Pautrat said.
Wide latitude
Lehigh County District Attorney James Martin said there are pros and cons to the emphasis on mitigation. On one hand, defense lawyers “help us preserve convictions down the road” because successful appeals are less likely. On the other, mitigation adds to the cost of trials because prosecutors, too, must hire experts to rebut, for example, testimony of defense mental health experts.
He also believes the courts have gone too far in giving wide latitude to the defense on what constitutes mitigation. “Everybody goes through life with some difficulties,” he said.
Clark and other defense lawyers said specialists in mitigation and mental health are necessary because although attorneys can be good at interviewing witnesses about facts, they don’t always have the time or expertise of specialists who know how to get people to open up about sensitive subjects.
“I think I’m a pretty good lawyer, but I don’t have the skill to do what she does,” Clark said of Pautrat.
Courts have said that it’s not enough to just ask a client if he has had mental health or other problems and get a “no” answer.
Another one of Clark’s clients, Norman T. Steward, who was charged with the shotgun slaying of an Allentown woman, insisted, “I’m not crazy,” and would not talk to a psychologist. Family members in Philadelphia said there were no problems. Clark sought assistance from mitigation specialist Cindy D. Rowe of Philadelphia and got a court order for Steward’s school records.
Pautrat said family members may be unaware of abuse or other trauma or may be too embarrassed to say anything. Clark said clients can lie or not realize they have mental health problems.
Clark had trouble finding a mitigation specialist and one who would do it for the amount the court was willing to pay, which initially was $25 an hour. He eventually found Pautrat after attending a death penalty seminar in Philadelphia.
“There are not a whole lot of them, and that is part of the problem,” O’Brien said. “There is a handful in every state.”
The American Bar Association recommends a team approach in the defense of capital cases, with two experienced lawyers, an investigator and a mitigation specialist.
Supplementary guidelines made public this month govern defense teams, how lawyers and mitigation specialists should work together and the abilities a mitigation specialist should have. The guidelines of the Hofstra Law Review were developed by experts in different fields with the cooperation of the American Bar Association Death Penalty Representation Project.
O’Brien said the association wants to be able to train more people to do mitigation work and hopes to encourage state and federal legislators to approve funding for training and adequate mitigation in cases.
Costly work
Defense lawyers who want to hire specialists and other experts don’t get blank checks from courts. But judges, aware of the ABA guidelines and case law that has evolved “are getting more understanding of what we have to do and, therefore, they are authorizing the necessary expenditures to do it,” Clark said.
Earlier this year, the court ordered that the county pay $1,721 to Cindy D. Rowe for her mitigation work on Rivera’s case before Pautrat was hired.
The court said the county would pay Pautrat $75 an hour for services, not to exceed $5,000, and her round-trip airfare from Philadelphia to Puerto Rico and car rental costs.
In June, the court authorized the county to pay $5,000 to Hamilton Township, N.J., neuropsychologist Jonathan H. Mack and $3,500 to Dr. Robert L. Sadoff, a Jenkintown, Montgomery County, psychiatrist, for evaluating Rivera for the defense. Dr. Paul Gross, a forensic psychiatrist, was paid $1,200.
“If you are going to kill somebody, it is going to cost you,” Clark said, reciting what death penalty opponents and appeals lawyers repeatedly say -- If a state is going to have a death penalty, it has to provide funds for an adequate defense and representation.
In Rivera’s case, Clark said, the defense was ready for the penalty stage of the trial. But Rivera pleaded guilty to third-degree murder, avoiding any consideration of the death penalty, and was sentenced to 40 to 80 years in state prison.
Some day, mitigation may be moot if the death penalty is abolished, as it has been in homicides involving juvenile and mentally retarded defendants. Martin noted that no one can predict who a new president will appoint to the U.S. Supreme Court and what rulings will come.
And in the meantime, some wonder if the day will dawn when death penalties are overturned because mitigation specialists, as agents of defense lawyers, missed a crucial piece of evidence.
Copyright 2008 The Morning Call, Inc.