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No. 1
Mitigation Matters
Investigating and Presenting your Client’s Life Story
By Major Allyson J. Montgomery
My job is to tell my client’s story, and to do that I really have to get to know them.1
You are a newly assigned defense counsel in the Army’s Trial Defense Service (TDS). One of your first clients is charged with physically abusing her baby so severely that the child has broken bones and brain hemorrhaging. After meeting with the client several times to discuss the facts of the case, she makes an off-hand comment about being the victim of childhood trauma. Something in the back of your mind clicks, and you ask the client to tell you more about the abuse she suffered. This conversation turns into an hours-long discussion in which you uncover more information about her life than in all the previous meetings. After the client leaves, you sit at your desk and ponder several questions. Does the information she shared with you fall into the definition of “matters in extenuation and mitigation?”2 If it does, what other information should you gather, and in what form? After you collect more information, how do you present this evidence at the presentencing hearing?
To answer these questions, military defense counsel should follow the investigative techniques found in capital sentencing practice. As discussed below, the social history method of investigating mitigation evidence leads to the most robust evidence to use during the presentencing hearing. Similarly, military defense counsel should follow the advice of capital practitioners and advocacy experts when presenting mitigation evidence at the presentencing hearing to ensure the information is palatable to the sentencing authority.
As a starting point when thinking about mitigation, presenting information to the sentencing authority about a client’s life, background, and character is vital to reduce the client’s culpability, which may decrease their sentence.3 Such information falls within “matter[s] in mitigation” according to Rule for Courts-Martial (R.C.M.) 1001(d)(1)(B).4 Even after reading the rule, defense counsel may not know how to start preparing a defense sentencing case. The definition of matters in mitigation is vast, and counsel’s imagination is the only limiting factor when looking for mitigation evidence.5
A new defense counsel may believe mitigation is only about whether their client showed up to formation on time or received perfect scores on physical fitness tests. Without training and experience, attorneys may not understand how to investigate mitigation evidence without a mitigation specialist’s assistance.6 Moreover, law schools generally fail to train lawyers to “listen to a client’s pain, fear, anger or despair”7—a requirement for discovering mitigation evidence. As well, military defense counsel have no shortage of work. Defense counsel must find the time to review pretrial discovery, conduct merits investigations, and develop presentencing cases for court-martial clients, while at the same time advising clients on non-judicial punishment and separation actions. Nevertheless, with a bit of time, organization, and ingenuity, defense counsel can effectively investigate and present mitigation evidence in non-capital cases without expert assistance.
By leveraging empirical research and jurisprudence from death penalty mitigation practice, this article provides the defense practitioner a primer on two interrelated topics: conducting a capital-style social history investigation to gather mitigation evidence and effectively presenting mitigation evidence during the presentencing hearing. First, the article discusses the definition of mitigation evidence, explains why it matters, and provides examples of successful mitigation cases. Next, this article teaches counsel how to conduct a social history investigation to find mitigation evidence, including strategies to collect relevant records and interview witnesses. Lastly, this article addresses trial advocacy techniques defense counsel should use to present meaningful sentencing cases. By the end of this article, defense counsel will have a foundational understanding of how mitigation evidence can positively impact a case and be able to put this information into practice.
What Is Mitigation Evidence and Why Does It Matter?
Many definitions of mitigation evidence exist, from the flowery to the regulatory. Every definition of mitigation evidence includes those things that make each person unique and includes good and bad life experiences that led to the commission of a criminal offense.8 Scholars mostly study the impact of mitigation on capital cases, with countless texts and studies on the topic.9 For example:
The diverse frailties bestow the kinship of humanity. We all have them, to varying degrees, but, for most of us, the protective supports of family and society along with our individual strengths offset those frailties. For many capital clients, the frailties are overwhelming, and the supports are absent. Eighth Amendment jurisprudence confers compensatory protection to allow life-and-death decision makers to extend compassion on an individual basis.10
Mitigation is so paramount to death penalty sentencing that the American Bar Association guidelines require capital defense teams to present mitigation evidence.11 As such, capital defense counsel prepare for the sentencing phase of the trial as soon as they receive the case file.12 The reason is simple: “Mitigation works. It is all too often the difference between life and death.”13 However, the benefits of mitigation are not exclusive to capital sentencing, and non-capital defense teams should also prepare for the presentencing hearing as soon as possible.14
Non-capital mitigation jurisprudence is not as developed nor widespread as capital mitigation jurisprudence.15 Still, scholars and practitioners have made a recent push for counsel to utilize capital mitigation techniques for non-capital cases because using mitigation evidence in non-capital cases will benefit defendants.16 Non-capital defendants may share the same “human frailties” as capital defendants, with histories of trauma, mental illness, and addiction.17 Likewise, individualized sentencing, to include consideration of mitigation, is “highly relevant—if not essential—to the selection of an appropriate sentence.”18 Notably, military defense counsel have a unique advantage because the R.C.M. expressly permit the presentation of robust mitigation evidence in every court-martial.19
Defining Mitigation in Military Jurisprudence
Military jurisprudence permits the sentencing authority to consider mitigation evidence to determine an appropriate sentence.20 According to R.C.M. 1001(d)(1), defense counsel may offer evidence in extenuation and mitigation during the presentencing proceeding.21 Rule for Courts-Martial 1001(d)(1)(B) defines matters in mitigation as evidence unrelated to the crime “introduced to lessen the punishment to be adjudged by the court-martial, or to furnish grounds for a recommendation of clemency.”22 Examples of matters in mitigation include prior non-judicial punishment for the same offense, acts of good conduct or bravery, and evidence that the accused has a “reputation . . . for efficiency, fidelity, subordination, temperance, courage, or any other trait that is desirable in a [Service member].”23 Additionally, the accused may make a sworn or unsworn statement for the purpose of mitigation.24
Case law expands the definition of mitigation evidence to include the value of retirement benefits lost if the accused is discharged,25 prior punishment by a civilian court for the same offense,26 and certain medical conditions.27 After United States v. Wheeler, the drafters of the Military Judges’ Benchbook wrote a panel instruction regarding the non-exhaustive list of matters to consider when rendering a sentence.28 The “Wheeler factors” include things such as the accused’s age, good military character, family and financial difficulties, past performance in the Army, and character evidence.29
To summarize, R.C.M. 1001(d)(1)(B), R.C.M. 1001(d)(2), and case law provide defense practitioners with a nearly limitless definition of what constitutes matters in mitigation. The sentencing authority may consider both positive and negative life experiences as well as the accused’s character traits. With a firm grasp on the definition of mitigation evidence, the next consideration is how mitigation evidence has positively impacted real cases.
“Mitigation Matters”30
Mitigation evidence positively impacts sentences because it humanizes a defendant who has been found guilty of violating our social norms.31 Further, the benefits of presenting mitigation evidence exist regardless of the crime.32 In capital cases, mitigation can mean the difference between life and death.33 In non-capital cases, it may mean the difference between the maximum and lesser prison sentence or the difference between a dishonorable discharge and retention.34 There is no way to conclusively determine how mitigation evidence may impact any particular case or sentence.35 However, research highlights what types of mitigation evidence may positively or negatively affect future cases.36 One primary source of research is the Capital Jury Project, which collects data from jurors who served on capital cases.37 Scholars have studied this data and written extensively about what evidence was most persuasive to jurors and how mitigation evidence can backfire if misused.38
Empirical examples abound where mitigation evidence convinced juries to spare capital defendants’ lives.39 Take the case of Mr. Juan Quintero, who was charged with murdering respected police officer, Mr. Rodney Johnson.40 The facts of the case disfavored Mr. Quintero: he shot Mr. Johnson during a routine traffic stop, he had a prior conviction for sexually assaulting a child, he was a Mexican immigrant without a visa to live in the United States.41 Mr. Quintero’s defense team spent countless hours with their client, reviewed social history records, and interviewed witnesses.42 The attorneys learned Mr. Quintero suffered a head injury as a child that left him with a seizure disorder and diminished brain function.43 Also, Mr. Quintero’s father physically and emotionally abused him.44 Despite these facts, Mr. Quintero loved his family, and jurors viewed that as a strength.45 The defense team presented this evidence to the jury, who determined Mr. Quintero’s life was worth saving.46
Stories of the positive impact of mitigation evidence exist in non-capital military cases as well. If asked, any current or former defense counsel could recount a memory of a successful mitigation-driven sentencing case, such as a Soldier who joined the Army to leave a broken home or one who developed a substance abuse problem after multiple deployments.47 The positive result occurred in these cases because the defense counsel investigated the client’s life history, which is the starting point to develop the defense sentencing case.48
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Investigating Mitigation Evidence
Finding mitigation evidence takes time and significant effort.49 But, defense counsel’s time spent investigating mitigation evidence will reap rewards, as evidenced in capital cases in which defendants receive life sentences.50 The mitigation investigation is separate and different from the inquiry done in preparation for the merits portion of the trial, as the focus of the mitigation investigation is the client’s life and not the crime.51 Defense counsel should follow the general procedures for conducting the investigation, called a social history investigation, found in reference texts.52 The framework of a social history investigation includes multiple interviews with the client and witnesses and the collection of records.53
Client-Centered Representation
No social history investigation will be successful unless defense counsel embrace the tenets of client-centered representation.54 This standard requires defense counsel to establish rapport with the client by listening to and meeting regularly with the client.55 These efforts will build a strong relationship and develop the trust necessary for the client to share details about the crime and their life history.56 Gaining a client’s trust takes time, patience, empathy, and the desire to learn.57 Some, or all, clients may not be wholly honest and may feel uncomfortable with their attorney interviewing family, friends, or coworkers.58 Despite these barriers, counsel must forge a strong relationship with each client.59 “You may not know exactly how the relationship you have painstakingly built with the client will bear fruit, but it will.”60
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Social History Investigation
“The social history investigation starts with the client.”61 Defense counsel’s initial interviews with the client will provide a framework for conducting the social history investigation.62 Defense counsel must validate all information provided by the client because clients may not provide accurate details, for one reason or another.63 Defense counsel must also use the information provided by the client to expand the scope of the investigation.64 Client interviews should not be the beginning and end of the defense counsel’s social history investigation.65 After collecting social history information from the client, defense counsel must begin the arduous journey of collecting information from other sources and interviewing potential presentencing witnesses.66
Client Interview
Social history interviews with the client are different from the interviews defense counsel conduct to learn facts about the alleged crime for the merits portion of the trial.67 Defense counsel’s focus during the social history interview should be on discovering information that may convince the sentencing authority to sentence less than the maximum.68 This information may include sensitive topics, like abuse, neglect, and poverty, and clients may not be open to sharing this information.69 Clients are more likely to share these types of details about their lives if they understand the purpose of the social history investigation.70 To that end, defense counsel should use early client meetings to explain the presentencing proceeding and what categories of information are admissible.71 Setting the stage at the initial meetings gives defense counsel the best opportunity to build a successful mitigation case.72
During the social history interviews with the client, defense counsel should request details about information admissible under R.C.M. 1101(d)(1) and the Wheeler factors. Defense counsel should inquire into the client’s age, childhood, upbringing, family history, education, work history, traumatic experiences, combat history, and medical and mental health conditions.73 Determining whether a client has a mental health disorder must occur as early as possible, as a diagnosis can affect not only the social history investigation but also the merits investigation if an R.C.M. 706 inquiry is necessary.74 Defense counsel should consider providing the client with the Wheeler factors checklist contained in DA Pamphlet 27-9 before the first substantive meeting.75 Defense counsel should also collect contact details for potential social history witnesses and identify records to collect from schools, employers, family members, or medical providers.76
How defense counsel conducts the social history interview also differs from how they conduct interviews for the merits portion of the trial.77 Defense counsel should conduct client history interviews in a comfortable space where the client and attorney are equally situated.78 The TDS conference room or empty waiting area may be more conducive to open dialogue than the counsel’s office with counsel behind a desk.79 “A mitigation interview aims to put the witness in a position of power.”80 To accomplish this task, counsel should ask open-ended questions about general topics.81 Every client will have a unique story, so counsel should guide the conversation to relevant subjects but be open to topics the client desires to discuss.82 Counsel should ask the client for “factual narratives and descriptions” instead of asking the client whether he or she has been “abused” or has a mental health condition.83 This interview method will increase the possibility of information exchange because clients may not identify or feel comfortable with the labels attorneys use to describe trauma, life events, or mental health diagnoses.84 Defense counsel should be engaged during the interview, which means minimal note-taking.85 Note-taking is essential, but the primary note-taker should be a paralegal or co-counsel rather than the attorney conducting the interview. The techniques described above carry-over to the interviews conducted of potential presentencing witnesses, with a few differences.
Witness Interviews
In the death penalty context, defense teams employ mitigation specialists to interview social history witnesses and collect information for the penalty phase of the trial.86 Military defense counsel are unlikely to receive the support of a mitigation specialist for non-capital cases.87 As such, defense counsel88 are responsible for interviewing social history witnesses.89 When interviewing social history witnesses, defense counsel will employ many of the techniques described above, such as active listening, open-ended questioning, and using a comfortable space for the interview.90
In determining whom to interview, defense counsel should begin with family members, friends, mental health providers,91 and coworkers.92 However, the client’s life experiences will dictate whether defense counsel should interview civilian supervisors, teachers, coaches, clergy members, or confinement facility staff.93 For example, a senior client may not benefit from interviewing his high school teachers, whereas a new Soldier with few military contacts would. The goal is to “obtain a cross-section of data” about the client’s life to corroborate the client’s testimony or offer new information to the sentencing authority.94
Next, counsel must prepare for and conduct the interviews.95 Ideally, counsel should conduct mitigation interviews in-person.96 Defense counsel should explain to witnesses the military presentencing process and the role of mitigation evidence.97 Defense counsel may need to interview some witnesses several times to review sensitive issues, like abuse or neglect.98 During the substantive portion of the interview, defense counsel should guide the witness to specific topics and use open-ended questions to elicit answers.99 The goal is to gather stories to make the mitigating characteristic real to the sentencing authority.100 “A specific story of a particular horrific instance of abuse, for example, resonates with jurors more than general assertions that the defendant was abused.”101 Defense counsel should not audio record the interview because of discovery concerns and because it may alienate the witness.102 Instead, defense counsel should rely on a paralegal or co-counsel’s assistance for note-taking.103
Defense counsel should inquire about the positive and negative aspects of the following topics during social history interviews: birth and childhood development, family relationships, education, school performance, extracurricular activities, religion, the family’s socio-economic status, trauma and abuse, work performance, parenting style, major life events, mental health diagnoses, and behavior post-allegation.104 Appendix A includes a topic list to use in preparation for social history interviews.
Record Collection
Records may be the best mitigating evidence because they appear “less biased and susceptible to error than a witness’s testimony.”105 The process of collecting social history records is different from normal discovery practice.106 Instead of relying on the prosecution to collect social history records, defense counsel may desire to collect this evidence without the prosecution’s assistance to preserve client confidentiality.107 In addition, the spectrum of information gathered is broad and should include all aspects of the client’s life before and after the criminal allegation.108 Finally, the goal of mitigation records is different, as these records are collected to help form the basis for a reduced sentence.109
The road to success for record collection is threefold: request the records, review the records, and organize the records. Generally, defense counsel should search for and request education, medical, mental health, employment, court, prison, and military records.110 Defense counsel should collect social history records as soon as possible to ensure adequate time for the custodian to respond.111 As well, locating one record may necessitate supplemental record requests, so this process can become lengthy.112 Appendix B provides a non-exhaustive checklist for defense practitioners to use during record collection.
Defense counsel113 should ask record custodians whether the request for records must follow a specific format and whether the custodian requires client permission to release the documents.114 If the agency charges a fee for record production, counsel may either allow the client to pay or request the Government to produce the record.115 Defense counsel may not pay for record production.116 Before submitting the request, defense counsel should consider asking the records custodian to complete a business record affidavit.117 A business record affidavit is necessary to admit the records at the presentencing hearing if the defense counsel does not plan to call the records custodian as a witness or relax the rules of evidence.118
Next, defense counsel must review all social history records in search of information that may be mitigating.119 Whether information is mitigating is defendant-specific and case-specific.120 While the social history records may not be mitigating standing alone, they may support lay or expert witness testimony—thereby making the testimony stronger.121 Defense counsel must analyze the records and incorporate the information into the sentencing case.122 After reviewing the records, defense counsel123 should organize and make copies of the records for use during subsequent interviews and later at trial.124 No perfect organization framework exists, but the earlier counsel begins organizing, the easier it is to stay on top of mitigation records.125
Presentation of Mitigation Evidence
“Some of the most experienced public defenders specializing in capital cases have presented mitigating evidence only a handful of times over their long careers.”126 In comparison, a TDS counsel may present mitigation evidence at her first trial as a practicing attorney.127 Despite the uniqueness of mitigation practice, defense counsel can excel in sentencing advocacy by following the core principles of trial advocacy, plus the sentencing-specific suggestions discussed below.
Advocacy During the Presentencing Hearing
Before covering the mitigation-specific aspects of sentencing advocacy, three tenets of trial advocacy bear mention: authenticity, competency, and credibility.128 These three principles are tied to an attorney’s persuasiveness and remain vital during the presentencing hearing.129 Authenticity in trial practice is being “true to one’s own personality, spirit, or character.”130 Trial advocates must come to know themselves before entering the well of the courtroom and should not don a fake identity made for the courtroom.131 Competency is knowledge of the case and evidentiary rules as well as confidence and comfort in the courtroom.132 Credibility is a combination of trustworthiness, expertise, bearing, confidence, and knowledge about the case.133 Trial advocates earn credibility from the jury through their in-court behavior.134 These essential principles, along with theme and story, are as important during the presentencing phase of the trial as they are for the guilt-innocence phase.
Building a Mitigation-Centric Sentencing Case
Storytelling in Sentencing
Storytelling is the most effective means of persuasion. No other skill so elegantly or completely combines a lawyer’s ability to think, organize, write, and speak. This is why, everything else being equal, a credible lawyer capable of telling a well-reasoned story that moves the listener will always beat the lawyer who cannot.135
The defense sentencing case, and in particular, the mitigation aspect of sentencing, is based on the story of the client’s life.136 Attorneys use stories not only to organize and share information but also because stories appeal to both judges and juries.137 Material for compelling mitigation stories exists in every case because mitigation is “potentially infinite.”138 Moreover, Soldiers facing court-martial come from varied backgrounds. Some Soldiers choose military service to flee poverty while others serve to continue a family’s military tradition.139 All of these facts can combine to create emotionally moving mitigation stories that deserve to be told.
Many authors have written about legal storytelling and offer advice about using stories in courtroom practice.140 Defense counsel crafting sentencing stories should consider Jonathan Shapiro’s “Five Rules for Storytelling.”141 Mr. Shapiro, a former prosecutor, provides five rules for creating a compelling story. First, have a point.142 As described above, the point of the mitigation story is to humanize the client. Second, use Aristotle’s rhetorical triangle: ethos, logos, and pathos.143 Ethos appeals to the speaker’s credibility, logos uses reason, and pathos draws on emotion, beliefs, and values.144 The rhetorical triangle is useful because it connects facts with emotion in a logical manner.145 Third, write the script.146 “Unlike writers, lawyers are more limited by the story elements they are given.”147 No matter the “material” of the client’s story, counsel should write the script in a sequenced plot that builds momentum to keep the audience’s attention.148 Fourth, counsel must edit the script.149 Defense counsel must rework the sentencing “script” the same way counsel revises the trial plan.150 Mr. Shapiro’s final rule is to rehearse the performance.151 Rehearsing the performance allows counsel to perfect the story, tempo, and delivery to connect with the audience.152
Practically, defense counsel should tell the client’s sentencing story as a narrative through witness testimony, the accused’s testimony, and documentary evidence that counsel ultimately ties together during the sentencing argument.153 To help meet this goal, defense counsel must develop a theme that ties together the entire sentencing case and makes the evidence relevant to the sentencing authority.154
Mitigation Themes: The Good, the Bad, and the Ugly
During the mitigation investigation, counsel will learn that “most clients possess strengths alongside weaknesses.”155 The sentencing theme should account for this realization.156 The best theme for the case may be universal or one derived from the client’s background.157 No recipe exists for a perfect theme, but advocacy scholars offer countless ideas for creating the best theme possible.158 Before discussing how to create a theme, a brief note on how the theme relates to mitigation evidence. “All mitigation [evidence] has the potential to backfire if the evidence demonizes or portrays the defendant as broken or beyond repair. Mitigation evidence can also be converted into aggravating evidence if it is presented without context . . . .”159 This quote emphasizes the importance of using a theme throughout the sentencing case that explains why the evidence mitigates rather than aggravates the sentence.
The goal of theme development is to blend the good with the bad, appeal to common sense and morality,160 and motivate the sentencing authority to find in the client’s favor.161 When developing the sentencing theme, counsel should start with the client’s life experiences that may have contributed to commission of the crime.162 These life experiences are often negative and may include a history of abuse, neglect, extreme poverty, substance abuse, or mental health diagnosis.163 The Capital Jury Project suggests that jurors may find evidence about such experiences mitigating.164 An example theme incorporating negative life experience could explain how being hit with a belt as a child influenced how the accused “disciplined” his or her children.
Next, counsel should consider the client’s demonstrated positive character traits and good acts.165 The Wheeler factors allow the sentencing authority to assign mitigation value to deployment history, acts of heroism, family and spiritual support, and positive attributes such as honesty and strong work ethic.166 Research suggests that a clean criminal record and post-offense good behavior in jail may be mitigating.167 Sample jurors also assigned mitigation value to the otherwise negative fact of drug addiction when the defendant sought help for the condition.168 An example theme incorporating positive character traits could show the accused as a hardworking Soldier who joined the Army to flee a life of poverty and abuse.
In sum, combining the client’s negative life experience with positive character traits and good acts can result in an impactful, motivating theme. Defense counsel should strive to create and use a theme that “shows [the accused] as a human being, one who has done good and bad, and is sorry for the bad, one who loves and is loved, someone for whom hope is still possible.”169
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Bringing Mitigation to Life at the Presentencing Hearing
Defense counsel’s job does not end after the social history investigation concludes or once crafting the perfect sentencing theme for a case is complete. For the mitigation evidence to work, defense counsel must present logical and trustworthy evidence.170 “Being the most competent trial lawyer in the courtroom is not enough. It takes more than oratorical skills and courtroom savvy to convince decision-makers to decide in favor of your client. To win a case, the substance of your presentation must be compelling, meaningful, and inspiring.”171 Witness testimony, documentary evidence, and the accused’s testimony are the three opportunities for counsel to convince the sentencing authority to find in the client’s favor.172
Witness Testimony
The interviews done during the social history investigation will reveal an incredible amount of information.173 Before the trial begins, defense counsel must turn these interviews into testimony and develop the presentencing plan.174 Every presentencing “witness should contribute to the larger narrative of the client’s life.”175 Defense counsel should consider presenting mitigation evidence in the form of stories told by witnesses during the presentencing hearing.176 These stories may depict negative or positive life experiences.177 Experts recommend using narrative testimony because it is often more compelling than testimony about the act or character trait.178 Additionally, defense counsel should consider ordering witness testimony to make the most significant impact.179 Defense counsel should also think about using documentary, photo, or video evidence during witness testimony to bring the client’s story to life.180
Mitigation experts suggest defense counsel meet with expert consultants and consider using expert testimony in the presentencing case.181 Expert assistance is not limited to psychologists or psychiatrists and may include social workers, pediatricians, teachers, or mitigation specialists.182 Whereas the client and lay witnesses tell the client’s life story, expert witnesses can interpret the client’s life experiences for the sentencing authority.183 For that reason, expert testimony should relate to the factual testimony offered by family, friends, or coworkers.184 Just as lay witnesses should use narratives when testifying, expert witnesses should testify about client stories from their interviews with family members or the client.185 Despite the importance of expert testimony in certain cases, research indicates jury skepticism of paid experts.186 To alleviate this concern, defense counsel should consider consulting unpaid experts187 or experts from the Department of Defense, if available and beneficial to the case.
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Documentary Evidence and Visual Aids
Advocacy experts suggest using visual aids and documentary evidence during the trial because they reinforce testimony and help the sentencing authority remember facts.188 Also, some information may only exist in the form of documentary evidence.189 The best use of documentary evidence occurs when the exhibit or demonstrative aid nests within witness testimony, thereby supporting the credibility of the witness and cementing the idea in the sentencing authority’s mind.190 An example of this nesting technique would be using the Good Solider Book191 during witness testimony to highlight positive aspects of the client’s military career.192 Other creative uses of demonstrative aids include showing videos of the client’s childhood home, playing recordings of jailhouse calls between the client and family members, and showing a video clip of the accused performing in a church choir.193 In close, “Jurors are more likely to sense the humanity of the defendant if they are brought into his world through various manners of presentation.”194
The Accused’s Allocution
Rule for Courts-Martial 1001(d)(2) permits the accused to provide sworn or unsworn testimony at the presentencing hearing regarding extenuation, mitigation, or to rebut statements of fact contained in the crime victim’s sentencing testimony.195 This testimony, referred to as an allocution, is historically meant “as a plea for mercy.”196 The right to allocution allows the accused broad, but not complete, freedom to testify about the crime, the accused’s life, and plans after the trial concludes.197 An accused’s allocution can be emotionally moving if the defense counsel prepares the client for the difficult job of testifying.198
Preparing the Client to Testify
Preparing a client to testify at the presentencing hearing is hard, as many clients avoid thinking about presentencing.199 The prospect of a guilty verdict is appalling to most clients, and no one wants to discuss intimate life experiences in a public hearing.200 Despite these hurdles, defense counsel must prepare the client to discuss the mitigation topics uncovered during the social history investigation, develop testimony that will humanize the client to the sentencing authority, and evoke remorse from the client.201
An accused may testify sworn or unsworn, submit a written unsworn statement, or have defense counsel read a statement to the court on his or her behalf.202 This paper does not cover the strategic benefits or downsides of each method, but defense counsel must have that discussion with each client to ensure the client makes an informed decision. As part of that discussion, defense counsel must address the possibility of the sentencing authority perceiving the accused’s statement as insincere.203 After the client decides as to the form of testimony, the defense counsel must prepare the client to testify at what is likely the hardest moment of the client’s life.204
Taking the Stand
The accused’s performance on the stand matters whether the accused begs forgiveness or internally disagrees with the verdict.205 Research from the Capital Jury Project confirms that jurors value remorse as highly mitigating and find defendants more likable when they demonstrate genuine regret for the crime.206 A client who acknowledges guilt has the opportunity during allocution to take responsibility, apologize for the wrongdoing, and request mercy.207 An accused who testifies remorsefully may convince the sentencing authority to adjudge a lighter sentence by repenting, resolving to learn from the transgression, and atoning for the harm done.208
The more precarious situation exists when the accused maintains innocence after the verdict and wants to testify as such.209 Regardless of whether permissible or not, allocutions in which the client maintains innocence may backfire.210 The sentencing authority is unlikely to welcome a story of innocence after finding the accused guilty mere hours before.211 Such testimony may also run afoul of military jurisprudence, which prohibits the accused from impeaching the verdict during presentencing testimony.212 Research concludes that remorse matters to the sentencing authority, regardless of whether the accused accepts the verdict.213 With that in mind, defense counsel must discuss with the client any possible ramifications of testifying at the presentencing hearing.
Putting it All Together
The opportunity to discover and tell the client’s story is a privilege. As historian Edward Herndon remarked in his Lincoln biography, The True Story of a Great Life, “If one is in search of stories of fraud, deceit, cruelty, broken promises, blasted homes, there is no better place to learn them than a law office.”214 Client stories are wrought with the good, the bad, and the ugly; each story a patchwork quilt deserving to be told during the presentencing hearing. Further, capital jurisprudence and research prove that mitigation evidence matters to the sentencing authority.215 By putting together capital-style mitigation practices with the expansive nature of the military presentencing proceeding, defense counsel can present thorough, reasoned, and emotionally moving mitigation stories.
The first step toward this goal is for military defense counsel to incorporate capital-style mitigation investigatory practices into their representation of non-capital clients. The easiest, and most effective way to do that is through the social history method of investigation. For defense counsel unfamiliar with mitigation evidence, the social history method of investigation can serve as a model for all counsel to follow, regardless of experience level. Counsel who use this method and place priority on mitigation may experience better client relations216 and will more thoroughly prepare for the presentencing hearing.
The final step toward this goal is to heed the advice of advocacy experts and members of the capital-defense community regarding presentation of mitigation evidence. As discussed above, presenting mitigation evidence is nuanced and may have the opposite effect if not given proper context.217 Defense counsel can properly frame mitigation evidence for the sentencing authority through the use of story and theme.218 Similarly, counsel can bring the client’s story to life by using narrative testimony, nesting demonstrative aids or exhibits into witness testimony, and preparing the client to testify.219 In close, military defense counsel are in the unique position to present powerful mitigation cases based on our broad definition of mitigation, and capital jurisprudence offers myriad reasons to present this evidence at the presentencing hearing. It is just up to them to do it. TAL
MAJ Montgomery is a complex litigation attorney with the Office of Special Trial Counsel at Fort Belvoir, Virginia.
Notes
1. Jonathan Mahler, Commander Swift Objects, N.Y. Times (June 13, 2004), https://www.nytimes.com/2004/06/13/magazine/commander-swift-objects.html.
2. Manual for Courts-Martial, United States, R.C.M. 1001(d)(1) (2019) [hereinafter MCM]. While important, a discussion of extenuation evidence is purposely absent from this article. Defense counsel must familiarize themselves with the definition of extenuation in Rule for Courts-Martial 1001(d)(1)(A) and seek-out extenuation evidence during the investigation into the alleged crime.
3. See California v. Brown, 479 U.S. 538, 545 (1987) (O’Connor, J., concurring) (explaining that evidence of a disadvantaged background or mental health problems may show reduced criminal culpability in capital cases).
4. MCM, supra note 2, R.C.M. 1001(d)(1)(B).
5. See id.
6. See Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases, 36 Hofstra L. Rev. 677, 680 (2008) (discussing the role of a mitigation specialist).
7. Laurie Shanks, Whose Story Is It, Anyway? – Guiding Students to Client-Centered Interviewing Through Storytelling, 14 Clinical L. Rev. 509, 509 (2008).
8. See Tell the Client’s Story: Mitigation in Criminal and Death Penalty Cases 22-29 (Edward Monahan & James Clark eds., 2017) [hereinafter Tell the Client’s Story].
9. See, e.g., Blume et al., Competent Capital Representation: The Necessity of Knowing and Heeding What Jurors Tell Us About Mitigation, 36 Hofstra L. Rev. 1035 (2008).
10. Russell Stetler, The Mystery of Mitigation: What Jurors Need to Make a Reasoned Moral Response in Capital Sentencing, 11 Univ. Pa. J.L. & Soc. Change ٢٣٧, ٢٤١ (٢٠٠٨) (explaining that mitigation evidence is tied to the individual defendant’s unique life experiences that led to commission of the crime).
11. American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, 31 Hofstra L. Rev. 913, 1055–56 (2003) [hereinafter ABA Guidelines].
12. Tell the Client’s Story, supra note 8, at 259.
13. Id. at 20.
14. See Miriam S. Gohara, Grace Notes: A Case for Making Mitigation the Heart of Noncapital Sentencing, 41 Am. J. Crim. L. 41, 41 (2013).
15. Id.
16. Id.
17. Id. at 46.
18. See Pepper v. United States, 562 U.S. 476, 489 (2011) (quoting Williams v. New York, 337 U.S. 241, 247 (1949)).
19. See MCM, supra note 2, R.C.M. 1001(d)(1)(B).
20. See id. R.C.M. 1001(a)(1).
21. Id. R.C.M. 1001(d)(1).
22. Id. R.C.M. 1001(d)(1)(B).
23. Id.
24. Id. R.C.M. 1001(d)(2).
25. E.g., United States v. Washington, 55 M.J. 441 (C.A.A.F. 2001).
26. United States v. Simmons, 48 M.J. 193 (C.A.A.F. 1998).
27. United States v. Bray, 49 M.J. 300, 303 (C.A.A.F. 1998) (finding that poisoning-caused psychotic episode is mitigation).
28. United States v. Wheeler, 38 C.M.R. 72 (1967); see U.S. Dep’t of Army, Pam. 27-9, Military Judges’ Benchbook para. 2-6-11 (29 Feb. 2020) [hereinafter DA Pam. 27-9].
29. DA Pam. 27-9, supra note 28, para. 2-6-11.
30. Tell the Client’s Story, supra note 8, at 19.
31. See Julie Schroeder et. al., Mitigating Circumstances in Death Penalty Decisions: Using Evidence-Based Research to Inform Social Work Practice in Capital Trials, 51 Soc. Work 355, 359 (2006).
32. Lisa B. Holleran, Mitigation Evidence and the Ethical Role of a Defense Attorney in a Capital Case, 36 Crim. Just. Ethics, 97, 103 (2017).
33. Tell the Client’s Story, supra note 8, at 20.
34. This assertion is based on the author’s professional experience as a defense counsel and training officer for Trial Defense Service from June 2015 to June 2019 [hereinafter Professional Experience].
35. See Stephen P. Garvey, The Emotional Economy of Capital Sentencing, 75 N.Y.U. L. Rev. 26, 29-30 (2000) [hereinafter Emotional Economy].
36. Id.
37. Stephen P. Garvey, Aggravation and Mitigation in Capital Cases: What do Jurors Think?, 98 Colum. L. Rev. 1538, 1538 (1998) [hereinafter What Do Jurors Think?].
38. See, e.g., Blume et al., supra note 9.
39. E.g., Jeffrey Toobin, The Mitigator: A New Way of Looking at the Death Penalty, New Yorker (May 9, 2011), https://www.newyorker.com/magazine/2011/05/09/the-mitigator.
40. Tell the Client’s Story, supra note 8, at 19.
41. Id.
42. Id.
43. Id. at 19–20.
44. Id. at 20.
45. Id.
46. Id.
47. Professional Experience, supra note 34.
48. Id.
49. Jan Dowling, Ind. Pub. Def. Council, The Social History Investigation: Tools & Strategies for Obtaining a Life Sentence 2 (2001).
50. Tell the Client’s Story, supra note 8, at 19–20.
51. See Jose B. Ashford & Melissa Kupferberg, Death Penalty Mitigation: A Handbook for Mitigation Specialists, Investigators, Social Scientists, and Lawyers 45 (2013).
52. See, e.g. Dowling, supra note 49.
53. See Ashford & Kupferberg, supra note 51, at 45.
54. See Dowling, supra note 49, at 2.
55. Tell the Client’s Story, supra note 8, at 240–41.
56. Id.
57. Id. at 240.
58. Cornell Ctr. on Death Penalty Worldwide, Representing Individuals Facing the Death Penalty: A Best Practices Manual 15 (2d ed. 2017) [hereinafter Best Practices Manual].
59. See U.S. Dep’t of Army, Reg. 27-26, Rules of Professional Conduct for Lawyers, r. 1.1–1.4 (28 June 2018) [hereinafter AR 27-26].
60. Tell the Client’s Story, supra note 8, at 246.
61. Dowling, supra note 49, at 2.
62. Id.
63. See Tell the Client’s Story, supra note 8, at 243.
64. See id.
65. See id.
66. Dowling, supra note 49, at 3–8.
67. Betsy Wilson & Amanda Myers, Accepting Miller’s Invitation: Conducting a Capital-Style Mitigation Investigation in Juvenile-Life-Without-Parole Cases, The Champion, Apr. 2014, at 18, 19.
68. See Best Practices Manual, supra note 58, at 30–31.
69. Tell the Client’s Story, supra note 8, at 248.
70. See Dowling, supra note 49, at 2.
71. See id.
72. See id.
73. MCM, supra note 2, R.C.M. 1001(d)(1); DA Pam. 27-9, supra note 28, para. 2-6-11.
74. See Ashford & Kupferberg, supra note 51, at 75; MCM, supra note 2, R.C.M. 706.
75. DA Pam. 27-9, supra note 28, para. 2-6-11.
76. See Dowling, supra note 49, at 2.
77. See Wilson & Myers, supra note 67, at 19.
78. See id.
79. See id.
80. Id. at 20.
81. Id.
82. Id.
83. Id.
84. See id. at 20-21.
85. Id. at 20.
86. ABA Guidelines, supra note 11, at 952–60.
87. Professional Experience, supra note 34.
88. Defense counsel should train paralegals to interview presentencing witnesses. Not only is this training beneficial to a paralegal’s development, but it can free-up time for defense counsel to focus on other tasks.
89. U.S. Dep’t of Army, Reg. 27-10, Military Justice, para. 6-10(b)(2) (20 Nov. 2020) (“[C]ounsel have a positive duty to exercise independent judgment in control of the case.”).
90. See Dowling, supra note 49, at 9.
91. Defense counsel must discuss any implications of waiving the M.R.E. 513 privilege with the client. MCM, supra note 2, M.R.E. 513 (2019) (“Psychotherapist—patient privilege”).
92. See Ashford & Kupferberg, supra note 51, at 78.
93. Best Practices Manual, supra note 58, at 30.
94. Ashford & Kupferberg, supra note 51, at 79.
95. See Wilson & Myers, supra note 68, at 21.
96. Id. at 19–20.
97. Dowling, supra note 49, at 3.
98. Id.
99. Id. at 9–10.
100. Blume et al., supra note 9, at 1040.
101. Id.
102. Dowling, supra note 49, at 9.
103. Professional Experience, supra note 34.
104. Tell the Client’s Story, supra note 8, 278–79.
105. Wilson & Myers, supra note 67, at 21.
106. Tell the Client’s Story, supra note 8, at 273.
107. Wilson & Myers, supra note 67, at 21.
108. See Tell the Client’s Story, supra note 8, at 226–27.
109. See id. at 195.
110. See Dowling, supra note 49, at 5-7.
111. Id. at 3.
112. Wilson & Myers, supra note 67, at 21.
113. Defense counsel should train paralegals to search for and collect social history records, contact record custodians, follow-up on requests, and organize the records for review. This training leads to better case preparation, develops defense counsel as leaders, and provides paralegals with skills for future positions.
114. Professional Experience, supra note 35.
115. See AR 27-26, supra note 59, r. 1.8, r. 1.8 cmt. (describing specific rules and limitations surrounding business transactions between lawyers and clients).
116. See id. r. 1.8(e)
117. Dowling, supra note 49, at 3.
118. MCM, supra note 2, R.C.M. 1001(d)(3) (permitting defense counsel to request to relax the rules of evidence for matters in extenuation and mitigation).
119. See Tell the Client’s Story, supra note 8, at 225–26; AR 27-26, supra note 59, r. 1.3 (“A lawyer shall act with reasonable diligence and promptness in representing a client.”).
120. See Tell the Client’s Story, supra note 8, at 106 (citing Stephen P. Garvey, Aggravation and Mitigation in Capital Cases: What Do Jurors Think?, 98 Colum. L. Rev. 1538 (1998)).
121. See Tell the Client’s Story, supra note 8, at 226–27.
122. Id. at 201.
123. Defense counsel should train paralegals to create and manage records trackers for the social history investigation and even review the records to highlight material for defense counsel to review further. Professional Experience, supra note 34.
124. See Dowling, supra note 49, at 4.
125. See id.
126. Stetler, supra note 10, at 237.
127. Professional Experience, supra note 35.
128. See, e.g., Jessica D. Findley & Bruce D. Sales, The Science of Attorney Advocacy 21-47 (1st ed. 2012).
129. See id. at 20.
130. Authenticity, Merriam-Webster, www.merriam-webster.com/dictionary/authenticity (last visited June 7, 2023).
131. See Gerry Spence, How to Argue and Win Every Time 17 (1996).
132. Findley & Sales, supra note 129, at 20.
133. See Richard C. Waites, Courtroom Psychology and Trial Advocacy 26–28 (2003).
134. See id. at 500.
135. Jonathan Shapiro, Lawyers, Liars, and the Art of Storytelling 7 (2016).
136. Tell the Client’s Story, supra note 8, at 317.
137. See Allan Kanner & Tibor L. Nagy, Legal Strategy, Storytelling and Complex Litigation, 30 Am. J. Trial Advoc. 1, 12-22 (2006).
138. Tell the Client’s Story, supra note 8, at 22.
139. Professional Experience, supra note 34.
140. See, e.g., Shapiro, supra note 135.
141. Id. at 17–18.
142. Id.
143. Id.
144. Jaclyn Lutzke & Mary F. Henggeler, Ind. Univ. Sch. of Liberal Arts, The Rhetorical Triangle: Understanding and Using Logos, Ethos, and Pathos (2019).
145. Shapiro, supra note 135, at 53.
146. Id. at 17–18.
147. Id. at 126.
148. See id. at 131.
149. Id. at 17–18.
150. Id.
151. Id.
152. See id. at 187.
153. See id. at 7; Kanner & Nagy, supra note 137, at 21–25. For a discussion of sentencing argument every defense counsel should review, see Lieutenant Colonel Charles L. Pritchard, Jr., “Punished as a Court-Martial May Direct”: Making Meaningful Sentence Requests, Army Law., Dec. 2015, at 33.
154. See Kanner & Nagy, supra note 137, at 15–20.
155. Tell the Client’s Story, supra note 8, at 240.
156. See id. at 330.
157. Id.
158. See, e.g., Kanner & Nagy, supra note 137, at 14–19.
159. Tell the Client’s Story, supra note 8, at 108.
160. See Terre Rushton, Everyone Has a Storyteller Inside Them, NITA Monthly Theme Blog (Oct. 4, 2018), https://www.nita.org/blogs/monthly-theme-storytelling-part-one.
161. Waites, supra note 133, at 140.
162. See Holleran, supra note 32, at 103.
163. See Stetler, supra note 10, at 237.
164. What Do Jurors Think?, supra note 37, at 1565.
165. See Holleran, supra note 32, at 103.
166. United States v. Wheeler, 38 C.M.R. 72 (1967); DA Pam. 27-9, supra note 28, para. 2-6-11.
167. What Do Jurors Think?, supra note 37, at 1560.
168. Id. at 1565.
169. Blume et al., supra note 9, at 1053.
170. See Tell the Client’s Story, supra note 8, at 106.
171. Waites, supra note 133, at 7.
172. See MCM, supra note 2, R.C.M. 1001(d).
173. Personal Experience, supra note 34.
174. See Tell the Client’s Story, supra note 8, at 107.
175. Id.
176. Blume et al., supra note 9, at 1040.
177. Tell the Client’s Story, supra note 8, at 240.
178. See Blume et al., supra note 9, at 1040.
179. Tell the Client’s Story, supra note 8, at 107.
180. Id.
181. Id. at 106–07.
182. See Schroeder et al., supra note 31, at 355–63.
183. Stetler, supra note 10, at 260.
184. Scott E. Sundby, The Jury as Critic: An Empirical Look at How Capital Juries Perceive Expert and Lay Testimony, 83 Va. L. Rev. 1109, 1140–44 (1997).
185. Tell the Client’s Story, supra note 8, at 108.
186. See What Do Jurors Think?, supra note 37, at 1544.
187. Defense counsel should discuss the use of unpaid experts with the Trial Defense Service supervisory chain before accepting unpaid expert assistance. Often, there is no problem with the client accepting these services. However, issues can arise if the expert becomes unavailable for trial or seeks payment later. Professional Experience, supra note 34.
188. See Waites, supra note 133, at 349.
189. See Best Practices Manual, supra note 58, at 55–56.
190. See id. at 55.
191. The Good Soldier Book, which is commonly presented at the presentencing hearing, contains photos, awards, training certificates, evaluations, and other military accolades. Professional Experience, supra note 34.
192. Professional Experience, supra note 34.
193. Tell the Client’s Story, supra note 8, at 107–08.
194. Id. at 108.
195. MCM, supra note 2, R.C.M. 1001(d)(2).
196. Rachel Cunliffe, Defendants Encountering Victims in the Courtroom: Challenges and Opportunities of Allocution in Capital Trials for Doing Restorative Justice, 21 Contemp. Just. Rev. 396, 412 (2018).
197. See United States v. Grill, 48 M.J. 131, 133 (C.A.A.F. 1998).
198. See Cunliffe, supra note 196, at 417.
199. Professional Experience, supra note 34.
200. See Cunliffe, supra note 196, at 406.
201. See Kimberly A. Thomas, Beyond Mitigation: Towards a Theory of Allocution, 75 Fordham L. Rev. 2641, 2644 (2007); Theodore Eisenberg et. al., But Was He Sorry? The Role of Remorse in Capital Sentencing, 83 Cornell L. Rev. 1599, 1631 (1998).
202. MCM, supra note 2, R.C.M. 1001(d)(2).
203. See Michael Brick, A Halting Plea for Mercy, Heavily Edited, N.Y. Times (Jan. 25, 2007), https://www.nytimes.com/2007/01/25/nyregion/25trial.html.
204. Professional Experience, supra note 34.
205. See Cunliffe, supra note 196, at 416.
206. Emotional Economy, supra note 35, at 58.
207. Cunliffe, supra note 196, at 412.
208. Jeffrie G. Murphy, Getting Even: Forgiveness and Its Limits 41 (2003).
209. See Thomas, supra note 201, at 2664.
210. Id. (citing United States v. Li, 115 F.3d 125, 135 (2d Cir. 1997)).
211. Id. at 2662.
212. United States v. Johnson, 62 M.J. 31, 37 (C.A.A.F. 2005).
213. See Eisenberg et al., supra note 201, at 1631.
214. 2 William H. Herndon & Jesse W. Weik, Abraham Lincoln: The True Story of a Great Life 1 (D. Appleton and Co. 1900) (1888).
215. See, e.g., Tell the Client’s Story, supra note 8.
216. See Dowling, supra note 49, at 2.
217. See Tell the Client’s Story, supra note 8, at 155.
218. See Rushton, supra note 160; Waites, supra note 133, at 140.
219. Blume et al., supra note 9, at 1040; Best Practices Manual, supra note 58, at 55; Thomas, supra note 201, at 2644.
Appendix A: Sample Mitigation Interview Topic List1
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Instructions:Defense counsel should review the topics below with the client during the substantive social history interview(s). Later, defense counsel should review the same topics with social history witnesses to gather additional and corroborating information.
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TOPIC2
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SUBTOPICS
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Early Life
(0 – 6 Years Old)
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Birthplace
Information about parents (post-partum depression, health issues, access to health care during pregnancy, abuse during pregnancy, etc.)
Who lived at home?
Primary caregiver information (daycare, family, friends, etc.)
Socioeconomic status
Instances of abuse or neglect or involvement of children’s services
Physical, mental, educational milestone information
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School Age
(7 – 18 Years Old)
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Who lived at home?
Education information (schools, grades, friends, disciplinary issues)
Extracurricular activities
Socio-economic status
Instances of abuse or neglect or involvement of children’s services
Physical, mental, educational milestone information
Religious affiliation and involvement
Work history during high school
Did client complete high school education?
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Working Age
(18 – Current Age)
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Client departure from the family home
Work history (jobs, references, duties, disciplinary actions, etc.)
Continuing education (college, trade school, etc.)
Military service (reason for service, promotions, demotions, disciplinary actions, awards, deployments, duties, retirement eligibility, injuries, summary of duties for each position held, etc.)
Criminal record
Significant romantic relationships (marriage, divorce, etc.)
Starting a family (birth of children, miscarriages, etc.)
Instances of abuse and neglect
Mental health and substance abuse (diagnoses, treatment, recurring issues, etc.)
Physical ailments (hearing loss, vision loss, etc.)
Information about family members, friends, coworkers, supervisors, etc.
Religious affiliation
Volunteer work
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Post-Investigation Conduct
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Interaction with investigation
Mental and physical health
Job performance and attitude at work
Treatment by fellow Soldiers and leadership
Subsequent allegations of misconduct
Pretrial confinement (treatment, behavior, education, duration, issues, etc.)
Jail house visits (in-person or telephonic)
Relationship with family, friends, and coworkers
Future plans and goals (employment, education, place to live, support, etc.)
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1. For a thorough guide on suggested topics and questions for the social history investigation, defense counsel should review Jan Dowling, Ind. Pub. Def. Council, The Social History Investigation: Tools & Strategies for Obtaining a Life Sentence 9 (2001). For an example of a completed social history report, defense counsel should review Tell the Client’s Story: Mitigation in Criminal and Death Penalty Cases 434 (Edward Monahan & James Clark eds., 2017).
2. Jan Dowling, Ind. Pub. Def. Council, The Social History Investigation: Tools & Strategies for Obtaining a Life Sentence 2 (2001).
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Appendix B: Social History Records Checklist1
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Instructions:Defense counsel should initially review this checklist with the client and make note of the existence and possible location of the category of records below. Defense counsel should consider using this checklist during interviews with the client’s family, friends, and coworkers who may know about additional records or have more accurate information about the location of records.
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Medical Records
Requests for medical records should include entire medical files, including imaging and lab results, diagnoses, prescription history, and follow-up care. Defense counsel should consider requesting the client’s family medical records if there is a history of a genetic condition or substance abuse history.
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Prenatal & Birth Records
Notes:
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Pediatric & Well Child Records
Notes:
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Records of Injury & Hospitalization
Notes:
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Adult Medical Records
Notes:
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Mental Health Records
Notes:
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Substance Abuse Treatment Records
Notes:
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Family Medical & Genetic Records
Notes:
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Dental Records
Notes:
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Education Records
Requests for education records should include disciplinary records, notes from teachers, transcripts, and graduation or completion certificates.
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Pre-K or “Headstart” Records
Notes:
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High School Records
Notes:
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Elementary School Records
Notes:
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College and Trade School Records
Notes:
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Employment & Related Records
Requests for employment and related records should include the client’s complete employment history and personnel files. Related records may include proof of the client’s payment of alimony and child support to show family reliance on client.
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Hiring & Departure Records
Notes:
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Disciplinary Records
Notes:
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Promotion Records
Notes:
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Awards
Notes:
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Social Security Earnings Records
Notes:
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Credit History
Notes:
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Tax Records
Notes:
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Child Support & Alimony Records
Notes:
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Military Records
Requests for military records should include the client’s entire personnel file. Defense counsel should review the personnel file to ensure all records are included, as the client may have additional records or the personnel file may be incomplete.
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Enlistment & Commissioning Records
Notes:
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Evaluations
Notes:
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Awards
Notes:
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Disciplinary Records
Notes:
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Promotions & Demotions
Notes:
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Discharge Records
Notes:
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Deployment Records
Notes:
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VA or DFAS Records
Notes:
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Family & Home Life Records
Requests for family and home life records should include the client’s records in these categories as well as the client’s parents and possibly children’s records in these categories, as applicable to the case.
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Abuse & Neglect Records
Notes:
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Social Service Records
Notes:
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Family Photos
Notes:
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Extracurricular Activity Records
Notes:
|
|
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Volunteer Records
Notes:
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Religious Affiliation Records
Notes:
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Cultural & Community Records
Notes:
|
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Marriage, Divorce, Adoption Records
Notes:
|
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Criminal & Civil Court Records
Requests for court records should include records where the client is listed as both the victim and suspect and should include transcripts of the accused’s testimony, if applicable.
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Juvenile Records
Notes:
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Adult Records
Notes:
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Civil Court Case Records
Notes:
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Appendix C: Sample Mitigation Records Tracker
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Instructions:Defense counsel should use a tracker to monitor record locations, points of contact, dates, and even whether copies of records have been made for trial. The tracker below is but one example. Defense counsel and paralegals should work together to create a tracking system for individual cases or for the TDS office, generally.
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Name of Record
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Location
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Point of Contact
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Date Requested
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Date Received
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Alcohol Abuse Treatment Records
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Treatment Center,
123 Sesame Place, Sunnyfield, OH, 00000
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Mr. Oscar D. Grouch
(record custodian)
Business Affidavit requested
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1 January 2018
1 January 2018
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31 March 2018
Pending
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K-12 Education Records
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Multiple
Client will provide NLT 1 February 2018
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Unknown
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Pending
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Pending
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