Filed: 03/14/202316253230

Seventh Judicial District, Fremont County

Abbie Mace, Clerk of the Court
By: Deputy Clerk - Harrigfeld, Becky
R. James Archibald, Esq.
Attorney at Law
Idaho State Bar No. 4445
1493 North 1070 East
Shelley, Idaho 83274
Telephone (208) 317-2908
Email: [email protected]

John Thomas, Esq.

Attorney at Law
Idaho State Bar No. 6727
166 Martinsburg Lane
Idaho Falls, Idaho 83404
Telephone (208) 313-7481
Email: [email protected]

IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT

OF THE STATE OF IDAHO, IN AND FOR FREMONT COUNTY

STATE OF IDAHO,
Case No. CR22-21-1624
Plaintiff,
RESPONSE TO STATE’S
vs. OBJECTIONS

LORI VALLOW DAYBELL,

Defendant.

Comes now the Defendant, through her attorneys, and responds to the State’s Objections

by filing the attached Affidavit of Mary C. Goody, mitigation specialist.

Dated: March l4, 2023

/s/ Jim Archibald

R. James Archibald, Esq.

RESPONSE TO STATE’S OBJECTIONS - l

 /s/ John Thomas
John Thomas, Esq.

CERTIFICATE OF SERVICE

I hereby certify that on this day I served a true and correct copy of the foregoing
document on the following by the method of delivery indicated:

Lindsey A. Blake, Esq. Efile and serve

Robert H. Wood, Esq. Efile and serve

Dated: March 14, 2023 /s/ Jim Archibald

R. James Archibald, Esq.

RESPONSE TO STATE’S OBJECTIONS - 2

 DECLARATION OF MARY C. GOODY

STATE OF WASHINGTON )
) ss.
County of CLARK )

COM ES NOW, Mary C. Goody, after being duly swom, does hereby state
as follows:

I. CREDENTIALS
I. I am a mitigation specialist in private practice located at 26605 NE
r”
96 Court, Battle Ground, Washington, 98604. I have been in private
practice since October of1991. My resume is attached to this Affidavit as
(Attachment I). I have worked as a mitigation specialist on death penalty
cases since July of 1985.

2. I am the retained mitigation specialist in State ofldalio V. Lori Val/0W

Dazbcll

3. Since 1985 I have worked on over 120 capital murder cases on which I
have conducted preliminary and extensive social history investigations,
prepared social hist01y and chronological reports, assisting attorneys in the
preparation of a penalty phase case at a trial; or at hearing in a post-
conviction proceeding. I have worked on capital cases at the state level in
Oregon, Colorado, Missouri, Kansas, Washington, Idaho, Wyomincr,
California, Utah, and Arizona. I have worked on 16 Federal death penalty
trial level cases in the states of New Mexico, Rhode Island, Michigan,
Kansas, Utah, Iowa, North Dakota, Arizona, and Missouri.

4. I have participated in continuing education since I began working as a

mitigation specialist. I have attended local and national death penalty
seminars beginning in 1985 in Oregon. A very strong emphasis has always
been placed on fully investigating every aspect of the client’s life. The
overriding theme of these trainings is that a mitigation specialist must
exhaustively investigate the case with special emphasis placed on the effects
that family history, trauma, mental health, and multiple other factors
together play a role in understanding the actions of the client. Counsel, fact
investigators, and other members of the team should work together with the
mitigation specialist to immerse themselves in the client’s life history, in
order that a documented story can be presented to the trier of fact in an effort
to avoid a death sentence.

5. My specialized training includes seminars put on by the Oregon

Criminal Defense Lawyers Association, California Attorneys for Criminal
Justice, National Legal Aid and Defender Association, Habeas Corpus
Resource Center, Federal Resource Counsel Strategy Sessions, ARC, and
others on a yearly basis. A focus of the training is to emphasize that attorneys
representing death eligible defendants must form teams of qualified persons
to work on their cases, and that the highest quality background
investigations must be performed by mitigation specialists to ensure that a
lifesaving defense be developed for the client.

6. The description of the role of a mitigation specialist that I give below

represents the prevailing professional norms for practice of mitigation
specialists working in the United States at the state and federal level at the
present time.

7. The role of a mitigation specialist in a capital case is to assist the

attorneys representing a death eligible client in investigating and preparing a
social history that fully focuses his or her efforts towards understanding the
broader environment that has affected the client during his life, and through
this understanding, build the life history of the client. The purpose of the
investigation is to gather personal and background information about the
client that will not only humanize the client, but also fully rebut the
aggravation evidence the State intends to offer in support of their request for
a death sentence. The mitigation specialist and other members of the team
must create a mitigation theme based upon the client’s life history. The
theme explains the conduct of the defendant over a lifetime. The core team,
through the combined efforts of at least two counsels, the mitigation
specialist, fact investigators, and other experts as needed, should utilize that
theme throughout the entirety of the case, from motion hearings, to
negotiations, to trial preparation, voir dire, the merits, and penalty phase
portions of the case. The mitigation theme is, therefore, the foundation for
other work in the case that may lead to a sentence other than death.
8. A mitigation investigation produces a wealth of information about the
client that acts as a window into the life of a defendant on the day he/she
committed the murder. The investigation begins with little, or nothing
known about the individual except what is contained in the discovery and
the knowledge that a crime has been committed. The eore team is formed as
soon as possible after the appointment of counsel and begins meeting with
the client, explaining the life history investigation process, answering
questions, and earnestly working to establish a trusting relationship with
him/her. The client must understand why the core team needs to understand
the environment in which the client has lived his/her life so all the aspects
that formed that person’s life trajectory can be explained to a jury in the
various trial phases through witnesses, and exhibits. The mitigation
specialist will begin a series of meetings with the client for extended periods
of time throughout the life of the case to learn about the progression of
his/her life, and how he/she has perceived those life events. Extensive notes
must be made of these conversations, to preserve as many names as possible
of people touching the life of the defendant, and places where background
documents can be obtained. The mitigation specialist will begin to gather
documents spanning the life of the defendant. As information is gathered
and people are interviewed, the mitigation specialist returns to discuss the
new infonnation with the client, making sure he/she has ample time to reflect
and respond.

9. It is important to fiilly interview the defendant’s family, discussing the

events of how each of them has fared throughout their lives. Inquiry must be
made from the defendant and his/her family members about the places where
the client lived, his medical, mental health, marital, religious, military, and
educational history. Family members must be asked about their own
education, medical, mental health, and other histories. Other topics to be
discussed include traumatic events, addiction history, previous arrests,
incarcerations, or juvenile incarcerations or treatment, to name a few areas of
questioning. It is important to discuss with the client his/her experiences in
all these facilities and situations and continually ask for names of others
whom we might interview about the client. Lists of materials and witnesses
are compiled and these persons are located and interviewed. Often these
contacts are continuing throughout the preparation of the case because more
leads to documents and witnesses come from interviews and reviewing
collected documents. Meticulous requests are made for all records
associated with the client or his family such as birth certificates, birth
records, school, medical, counseling, military, social security, and
incarceration. It is always necessary to investigate the environments or
neighborhoods that the client was raised in as individuals other than family
members are often more aware of the psychosocial stressors affecting the
well-being of the defendant or the neighborhood.

Io. As documents and information are collected, they must be scrutinized

for important facts. School and juvenile institutional records often contain
the names of foster parents, or guardians not readily remembered by the
client. Educational records contain information regarding early intelligence
test scores and absences from school. Drafts should be started of various
kinds of compilations of infomiation such as a chronology of significant
events, lists of documents requested, list of addresses where the client has
lived, lists of witnesses to be interviewed and how they fit into the scheme of
the client’s life, lists of documents that have been destroyed. Careful
documentation of efforts to collect information can lead to motions t0 ask
that death not be considered as a penalty as too many vital pieces of
background information are destroyed. The core team must meet often to
discuss the progress of the investigation, and the important aspects that are
emerging. The team then consults with various experts to detemiine what
kind of evaluations will best assist them in explaining the client t0 a
sentencing body. Often the results of the life history investigation, combined
with the evaluations of the experts produces an opportunity for counsel to
negotiate with the prosecution.

n. The mitigation investigation is critical to the information offered

about the defendant at trial. The jury must have a complete understanding of
how the defendant has been a product of his/her environment, his/her mental
health functioning, and his/her familial nurturing, or the lack thereof. This
information explains the client. The team must personally interview the
witnesses exploring and documenting the stories the witnesses tell. Often
the client does not fully remember critical events from his/her past, or
because of a mental health illness will minimize the importance of formative
experiences. The mitigation specialist must then further delve into these
facts and locate witnesses who can corroborate these important events.
12. The mitigation investigation must cover all aspects of the defendant’s
life and is not complete without a continuous flow of background
information from before the birth of the defendant to the present time of
his/her life. The investigation seeks to look back into the life history for at
least three generations. The goal of the investigation is to help the jury
understand the defendant as well as if they had read a biography of his/her
life. To make an informed choice about what existing background factors are
most suited to a particular defense, all investigative leads must be vigorously
pursued. It is not uncommon that family members or other close associates
of the defendant are unable or unwilling to recall re-traumatizing, painfiJl
memories and the mitigation specialist must be sensitive to these
impairments and proceed to follow investigative leads with care and concern
for those being interviewed. The mitigation specialist needs the time to
make a thoughtful and relentless search for witnesses who remember the
client and his/her family - the time to establish a rapport with those witnesses
to uncover the crucial life history information so vital to a penalty phase
presentation.

I3. The United States Supreme Court has repeatedly stated that “Death
is difierent” from any other penalty, and thus the information needed by a
verified and
sentencing body to make the sentencing decision must be
reliable. ( Woodson V. North Cam/ma, 428 U.S. 28o, 305 (1976.)) The Court
as long ago as 1978, stated that the sentencer should be allowed to consider
“as a mitigating factor, any aspect of a defendant’s character or reoord...that
the defendant profieis as a basis for a sentence less than death.” (Lac/{ctr V.
0/11'0, 438 U.S. 586,604 (1978.) Lockertwas one of the first cases to
emphasize that there can be many different facets to the mitigation
investigation and ultimate presentation.

i4. In 2003, the American Bar Association adopted the Revised ABA
standards pertaining to capital defense work and incorporated the previously
"
should
adopted 1989 Guidelines and provided that a sentencing phase
evidence and
comprise eflbrts to discover all womb/ya vailable mitigation
evidence to rebut any aggravating evidence thatnzay be introduced by the
prosecutor." Guideline # 11.4.1 (C.) ABA Guidelines for
the Appointment
and Perfomiance of Counsel in Death penalty Cases © (1989). These
Guidelines were developed to provide guidance to those people representing
death eligible clients and to establish prevailing professional norms for
practice. In the Introduction to the 1989 Guidelincs, it exprwsly statcs that,
‘1. they enumerate the nu'm'mal resources andpmca’cm necessazy to pro Vidc
”
efircctivc assistance ofcounsc]. The Guidelines fiirther state in the
Commentary that. “The lawyer also has a substantial and important role to
perform in raising mitigating factors both to the prosecutor initially and to
the court at sentencing. Investigation is essential to fulfillment of these
functions”. Commentary, pg. 4-55. In 2008, the Supplementary Guidelines
for the Mitigation Function of Defense Teams in Death Penalty Cases were
published (36 Hofstra L.Rev.677) to clarify the role of the mitigation
specialist as an integral member of the team. Lawyers are generally
“...unprepared and ill equipped to discover mitigating evidence without
expert assistance. The special skills and abilities necessary to obtain sensitive
and sometimes embarrassing evidence about a client’s life experiences from
family members and other sources are often beyond the abilities of even the
most skilled courtroom lawyer.” (SEE ABA Guidelines, note I at Guideline
4.1.) ("The ABA and the Supplementary Guidelines for the Mitigation
Function of Defense Teams in Death Penalty Cases, Hofstra Law Review,
Vol. 36, Issue 3, Article 5.” — attached as Attachment 2.)

I5. In addition to the Guidelines, in my work I refer to significant legal

decisions that specifically address the importance of a comprehensive
mitigation history, such as Woodson v. South Carolina, 428 U.S. 28o, 304
(I976), Lockett v. Ohio, 438 U.S. 586 and other more recent cases, such as
Williams v. Taylor 529 U.S. 362 (2000), Wiggins v. Smith, 539 U.S. 510
(2003) and Rompilla V. Beard 545 U.S. 374 (2004. ) These decisions provide
as
guidance to attorneys and those involved in mitigation investigations, they
emphasize the need for the development and presentation of a detailed
picture 0f the defendant's life history background; his character; his mental
health history, presenting cause and effect 0f his life history upon his mental
health; and life experiences which impacted him. In Wiggins, applying the
Guidelines, the Supreme Court tells us that trial counsel must “undertake to
discover all reasonably available mitigation evidence and evidence to rebut
any aggravating evidence that may be introduced by the prosecutor.”
Wiggins v. Smith, 539 U.S. 510, 524 (2003) (underline in original).

I6. The Wiggins case is especially meaningful as it discusses the difficulties

posed when only half-heartedly investigating a mitigation case. “In assessing
the reasonableness of an attomey’s investigation, however, a court must
consider not only the quantum of evidence already known to counsel, but
also whether the known evidence would lead a reasonable attorney to
investigate further.” WiWins v. Smith, 539 U.S.5Io, 525 (2003).

I7. I have conducted a mitigation investigation of the background of Lori

Norene Vallow Daybell, to the extent possible, Given the time constraints, in
accordance with my duties as a mitigation specialist in this case. I have
determined that a significant amount of imponant information both in the
form of documents and witnesses exist. In addition to the available
information are leads of unknown origin that would undoubtedly come up as
the team pursues the information we have uncovered or learned of through
the discovery already provided to us in this case.

The discovery in this case (at my last information) exceeds four terabytes.
18.
This is an incredible amount of infomiation, some of which has only recently
been given to the Daybell defense team just prior to the discovery cutoff, and
afterwards. The State, along with their cadre of law enforcement officials,
has had this information possibly for three years prior to the defense team
beginning their work in the late spring of 2022. Sifting through such a huge
number of investigative documents, audio and video files, and metadata and
other scientific evidence, and determining how each piece of information
applies to either the fact or mitigation (or both) sides of the defense case is a
very time-consuming job. There is absolutely no time to begin investigating
new information after determining how it relates to the mitigation case. I
must admit that, because of the client’s insistence on maintaining her speedy
trial rights, I have not been able to completely review the discovery we
already have. The recent disclosures make reviewing the complete discovery
information frankly, impossible. The recent addition of numerous witnesses,
listed without identifying information, or a summary of What their tastimony
would be at this late date constitutes a gross miscarriage ofjustice as even
the State must admit that the defense cannot begin to investigate this new
infomiation on the eve of trial.

19. Adding new witnessas such as the State has proposed fithher hampers
defense investigators who have attempted to contact numerous witnesscs
endorsed by the State but have been unable to interview these witnesses
because they have avoided retuming phone calls, texts messages and ignored
business cards left at their known addresses. Many of these individuals have
been participants in multimedia presentations or interviews. Witnesses who
have been interviewed by the defense, who have also been the subject of
prime-ti me media presentations report that while they were interviewed for
substantial periods of time, the amount of material presented in the episode
they were featured in, did not accurately portray all the information provided
to network, or news organizations. Information given to news organizations,
but never aired would very likely contain information critical to developing a
mitigation case, especially for a person such as Ms. Daybell,
who suffers
from a mental illness. The State has never provided the defense with all the
statements made by their witnesses about their contacts with the news
media.

20. It is a fact that the State of Idaho is seeking the death penalty against Ms.
and
Daybell who suifers from a mental illness with multiple diagnoses,
conditions which were identified by the Idaho State Hospital North but not
ruled out. These details are well known to the parties and the Court. Based
in the case, and the
upon her fragile mental health, time constraints
amount of discovery,
complexities in dealing with the voluminous existing
should this additional discovery be allowed, I would be further precluded
from conducting my customary and reasonable mitigation investigation in
Lori Vallow Daybell’s case. Allowing in any of the State’s new discovery after
the discovery cutoff date prevents me from conducting the type of mitigation
norms of practice
investigation which adheres to the prevailing professional
in death penalty cases.

Mary accrual)
U
Date: 3/14/23
 Resume

Mary C. Goody Mitigation Specialists

Mary C. Goody
26605 NE 96th Court
Battle Ground, WA 98604
(307) 690-5563; fax (360) 666-9132
email: [email protected]
PSID 34002; WA LIC #3044

PROFESSIONAL EXPERIENCE

MITIGATION SPECIALIST, October 1990 to present. Consultant

specializing in development and preparation of mitigation investigations, expert
witness coordination, and trial assistance for defendants facing the death penalty.
Experience in state and federal trials and post conviction cases. Emphasis on
investigation and development of mental health issues for presentation at trial,
competency and post conviction proceedings. Caseload has included cases in
Washington, Oregon, Idaho, Utah, Wyoming, Arizona, California, Illinois,
Missouri and Colorado.

DEFENSE INITIATED VICTIM OUTREACH services. June 2007 to

present. Washington and Lee University; Federal Resource Counsel Project.

LEGAL/ TRIAL ASSISTANT, Stoel, Rives, Boley, Jones and Grey, Portland,
Oregon. Defense firm, employment litigation. July 1991 to June 1992.

MITIGATION COORDINATION, DEATH PENALTY UNIT, Office of the

State Public Defender, Columbia, Missouri. January 1987-October 1990.
Responsible for tracking cases statewide at trial level, and post conviction death
penalty cases. Assisted in the coordination of issues, counsel, and cases; served as
mitigation specialist, trial assistant, and assistant to the Statewide Director of the
Capital Litigation Division.

LEGAL ASSISTANT, Jackson County Public Defender, Inc., Medford,

Oregon. November 1985 to November 1986. Staff legal assistant in seven attorney
office holding contract for indigent defense services in Jackson County, Oregon.
Prepared mitigation in county’s first death penalty case since hiatus.

LEGAL ASSISTANT, Pleasant Valley Research, Merlin, Oregon. January

1981 to September 1985. Freelance legal assistant. Prepared complex findings of
fact in land use matters for Josephine County Board of County Commissioners.
Provided planning services to the City of Cave Junction-

(baa c Liv Lu. m1?” /

 LEGAL ASSISTANT, Law Office of Ernest E. Cutting. 1979-1980. Staff legal
assistant.

EDUCATION

Defense Initiated Victim Outreach Training, Washington and Lee School of

Law, June 2007
Stephens College, Columbia, Missouri, B.A. Philosophy and Law, 1995
(Graduation Speaker — Class Representative)
University of Minnesota, Minneapolis, Minnesota, Legal Assistant
Training Program, 1980.

Numerous professional seminars including Life in the Balance, California

Attorneys for Criminal Justice - national training seminars for death penalty
related casework. I attend yearly training in Oregon and California.

PROFESSIONAL AFFILIATIONS

State of Oregon, Mitigation Specialist/ Private Investigator License #34002

State of Washington, Licensed Private Investigator #3044
Washington Association of Criminal Defense Lawyers
Oregon Criminal Defense Lawyers Association
California Attorneys for Criminal Justice
Hofstra Law Review

Volume 36 Issue 3I Article 5

2008

The ABA and the Supplementary Guidelines for

the Mitigation Function of Defense Teams in
Death Penalty Cases
Robin M. Maher

Follow this and additional works at: h ttp : / / sch olarlycommonsl awhofstraedu / hlr
0 Part of the Law Commons

Recommended Citation
Maher, Robin M. (2008) “The ABA and the Supplementary Guidelines for the Mitigation Function of Defense Teams in Death
Penalty Cases," Hofstra Law Review: Vol. 36: Iss. 3, Article 5.
Available at: l'll'tp: / / scholmrlycommo ns.law.hofstraedul hlr / “1136 / issS/S

This document is bmught to you for free and open access by Scholarly Commons at Hofstm Law. It has been accepted for inclusion in Hofitra Law
Review by an authorized administrator of Scholarly Commons at Hofstm Law. For mote information, please contact lnwclsq'i'lmiktmmlu.

[L HZ ( V71 I'lu, «1LT 4.-

 Maher: The ABA and the Supplementary Guidelines for the Mitigation Funct

THE ABA AND THE SUPPLEMENTARY

GUIDELINES FOR THE MITIGATION FUNCTION
OF DEFENSE TEAMS IN DEATH PENALTY CASES

Robin M. Maher”

On February 10, 2003, the American Bar Association House of

Delegates overwhelmingly approved the revised ABA Guidelines for the
Appointment and Petformance of Defense Counsel in Death Penalty
Cases (“ABA Guidelines”).l In doing so, the ABA renewed the serious
concerns it has voiced for decades about the fairness and reliability of
the death penalty. All jurisdictions were urged to adopt the ABA
Guidelines to ensure that capital trial and death row defendants had
access to qualified, competent counsel and the expert assistance and
funding that make capital legal representation meaningful.2
For the nation’s largest organization of lawyers, the quality and
availability of counsel for those facing execution is of paramount
concern. Although the ABA does not take a position on the death
penalty itself, it has long recognized that “[a] system that would take life
must first give justice.”3 The efforts of the ABA—through policy
statements,4 amicus briefsf task forces,6 and projects such as the Death

‘ Robin M. Maher, Esq. is the Director of the ABA Death Penalty Representation Project in
Washington, D.C. The opinions expressed in this Article are strictly her own and not those of the
American Bar Association.
1. ABA GUIDELINES FOR THE APPOINTMENT AND PERFORMANCE OF DEFENSE COUNSEL IN
DEATH PENALTY CASES, lntroduction (rev. ed. 2003), in 31 HOFS‘I'RA L. REV. 9l3 (2003)
[hereinafler ABA GUIDELINES]. The ABA GUIDELINES are also available online at
http://www.abanet.org/deathpenalty/resources/docs/2003Guide!inespdf.
2. Id. at Guideline I.I(A).
3. Violent Crime Control Act of 1991: Hearing on S. 6l8 and S. 635 Before the S. Comm. on
the Judiciary. 102d Cong. 334 (1992) (statement of John C. Curtin Jr., President, American Bar
Association).
4. See. e.g., ABA, REPORT SUBMITTED WITH RECOMMENDATION ON DEATH PENALTY
MORATORIUM (1997), available at http://www.abanet.oryirr/recIO7.html (calling “upon each
jurisdiction that imposes capital punishment not to carry out the death penalty until the jurisdiction
implements policies and procedures," including inter alia “[i]mplemcnting ABA ‘Guidelines for the
Appointment and Performance of Counsel in Death Penalty Cases‘. . .and Association policies

763

Published by Scholarly Commons at Hofstra Law, 2008

 Hofstra Law Review, Vol. 36,155. 3 [2008], Art. 5

764 HOFSTRA LA W REVIEW [VOL 36:763

intended to encourage competency of counsel in capital cases," “to . . . ensure that death penalty
cases are administered fairly and impartially, in accordance with due process, and . . . minimize the
risk that innocent persons may be executed"); ABA, REPORT SUBMITTED WITH RECOMMENDATION
ON ACCESS TO COUNSEL IN THE MILITARY FOR POST-CONVICTION HABEAS CORPUS DEATH
PENALTY CASES (I996), available at http:l/www.abanet.org/legalscrvices/downloads/sclaid/
lOlb.pdf (urging “that military capital prisoners be provided with the same opportunity for the
assistance of counsel in seeking federal post-conviction habeas corpus relief as is now provided by
federal law for persons sentenced to death in the civilian courts"); ABA, REPORT SUBMITTED WITH
RECOMMENDATION ON COMPETENT COUNSEL IN DEATH PENALTY CASES (I990), available a!
http:I/www.abanet.org/irr/feb90.html (“[S]Iate and federal governments should be obligated to
provide competent and adequately compensated counsel for capital
defendants/appellama/petitioners, as well as to provide sufiicient resources for investigation, expert
witnesses, and other services, at all stages of capital punishment litigation. The American Bar
Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases
should govern the appointment and compensation of counsel."); ABA, REPORT SUBMITTED WITH
RECOMMENDATION ON GUIDELINES FOR COUNSEL IN DEATH CASES (I989) (adopting the ABA
GUIDELINES FOR THE APPOINTMENT AND PERFORMANCE OF DEFENSE COUNSEL IN DEATH
PENALTY CASES (I998) [hereinafter I989 GUIDELINES] and urging the adoption of the of the
Guidelines by any entity providing counsel in capital cases); ABA. REPORT SUBMITTED WITH
RECOMMENDATION ON REPRESENTATION PLAN FOR HABEAS CORPUS IN DEATH PENALTY CASES
(I987), available a! http://www.abanctorg/legalservices/downloads/sclaid/I25.pdf ("[TJhe
American Bar Association urges each federal district and circuit court to adopt and each federal
circuit judicial council to approve a plan for providing representation in federal habeas corpus death
penalty proceedings which includes," among other things: (I) “appointment and compensation of
counsel, and of expert legal consultants if requested by counsel, in every federal habeas corpus
death penalty case Whether or not the petition was prepared, or counsel previously appeared, pro
bono;” (2) “the appointment for federal habeas corpus proceedings of eligible attorneys who
provided representation in the state post-conviction proceedings for the same case, unless the
petitioner objects for cogent reasons, there is evidence of a conflict, or other good cause appears for
appointing new counsel;" (3) “the appointment of two attorneys in every federal habeas corpus
death penalty case as counsel Of record;” (4) “pm-assignment screening of attorneys considered for
appointment to such cases to assure that only trained and experienced attorneys are appointed;" and
(5) “support for creation of state and regional centers to provide expert advice and assistance to
appointed counsel in federal habcas corpus death penalty litigation.“ The ABA also urged the
federal courts "to ensure the maximum extent of coordination and consistency concerning the
standards and procedures governing appointment of counsel in state and federal post-conviction
proceedings involving death penalty cases"); ABA, REPORT SUBMITTED WITH RECOMMENDATION
ON APPOINTMENT OF TWO ATTORNEYS IN DEATH PENALTY CASES (I985), available at
http://www.abanct.org/legalservices/downloads/sclaid/l09.pdf (recommending that “two attorneys
shall be appointed as trial counsel to represent the defendant" in a death penalty case); ABA,
REPORT SUBMITTED WITH RECOMMENDATION ON RIGHT To COUNSEL IN POST—CONVIC'HON DEATH
CASES (1979), available at http://wwwabanctorg/legalservices/downloads/sclaid/ 102b.pdf (“[‘I‘]he
American Bar Association recommends that the United States Supreme Court adopt a rule providing
for appointment of counsel to prepare petitions for discretionary review of State court convictions,
including appropriate postconviction or clemency petitions if necessary, in death penalty cases
where the defendant cannot afford to hire counsel," “offer to assist. . . in identifying qualified
attorneys who are willing to accept appointment," and “recommend to Congress that the Criminal
Justice Act. . . be amended to provide for the payment of adequate compensation to counsel . . .in
state death penalty cases“).
5. Sec. e.g., Brief of the ABA as Amicus Curiae in Support of Petitioner at [-2, Medellin v.
Texas, 2008 US. LEXIS 2912 (US. Mar. 25, 2008) (No. 06-984); Brief Amicus Curiae of the ABA
in Support of Respondent at 1-3, Schriro v. Landrigan, 127 S. Ct. 1933 (2007) (No. 05-1575); Brief

http://scholarlycommonslawhofstra.edu/hlr/volao/isss/s
 Maher: The ABA and the Supplementary Guidelines for the Mitigation Funct

2008] THE ABA AND THE SUPPLEMENTARY GUIDELINES 765

Penalty Representation Project7—-have been directed at identifying

problems and working to improve the systems that provide counsel to
indigent defendants. As stated in its 1990 Task Force Report:
The American Bar Association is persuaded that the
principal failings
of the capital punishment review process today are the inadequacy and
inadequate compensation of counsel at trial and the unavailability of
counsel in state post-conviction proceedings. The absence of
adequate
representation not only deprives capital defendants and death-
sentenced prisoners of a meaningful defense and of meaningful access
to state post-conviction remedies, but also greatly
aggravates and
protracts the death penalty review process. Specifically, the lack and
inadequacy of counsel in state capital proceedings forces state and
federal post-conviction judges to: adjudicate cases on the basis of
incomplete and oflen incomprehensible records; resolve manifold
colorable claims of ineffective assistance of counsel; dispose of myriad
procedural questions—including exhaustion of state remedies,
procedural default, and successive petition issues—arising from the
failure of counsel to notice and assert meritorious claims for relief; and

of the ABA as Amicus Curiae in Support of Petitioner at l. Bustillo v. Johnson. 548 U.S. 33!
(2006) (No. 05-51); Brief of the ABA as Amicus Curiae in Support of Petitioner at 1-2, Medellin v.
Dreflte, 544 U.S. 660 (2005) (No. 04-5928); Brief Amicus Cun'ne of the ABA in Support of
Petitioner at 1-4, Rompilla v. Beard, 545 U.S. 374 (2005) (No. 04-5462); Brief Amicus Curiae of
the ABA in Support of the Respondent at l-2, Roper v. Simmons, 543 U.S. 551
(2005) (No. 03-
633); Brief Amicus Curiae of the ABA in Support of the Petitioner at 1-4, Banks v. Cockrcll, No.
02-8286 (U.S. July I], 2003); Brief Amicus Curiae of the ABA in Support of Petitioner at 2-5,
Wiggins v. Smith, 539 U.S. 5l0 (2003) (No. 02-3] l); Brief Amicus Curiae of the ABA in Support
of Petitioner at l, McCnrver v. North Carolina, cert. dismissed, 533 U.S. 975 (200]) (No. 00-8727),
considered in Atkins v. Virginia, 536 U.S. 304, 306 (2002); Motion of the ABA to File Brief as
Amicus Curiae and Brief of Amicus Curiae in Support of Petitioner at 2, Gibson v. Head, cert.
denied, 528 U.S. 946 (I999) (No. 99-77); Brief of Amicus Curiae ABA in Support of Petitioner at
2, Williams v. Taylor, 529 U.S. 362 (2000) (No. 98-8384).
6. The l990 Report of the ABA Task Force on Death Penalty Habeas Corpus involved an
intensive, national study of cases in which defendants had been sentenced to death that included an
investigation of “the entire system of post-conviction review of capital convictions and sentences."
Ira P. Robbins, ABA, Toward a More Just and Eflective System of Review in Stale Death
Penalty
Cases, 40 AM. U. L, REV. i, l3 (I990). The report concluded that “[c]ompetent and adequately
compensated counsel from trial through collateral review is thus the sine qua nan of a just,
effective, and efficient death penalty system." Id. at l7.
7. The Death Penalty Representation Project was created in 1986. ABA, Death Penalty
Representation Project, http://www.abanetorg/dcathpenalty (last visited May ll, 2008). Its goals
include “rais[ing] awareness about the lack of representation available to death row
inmates, . . . addressfing] this urgent need by recruiting competent volunteer attorneys
and . . . offeriing] these volunteers training and assistance, . . . [and] workIing] for systemic changes
in the criminal justice system that would assure those facing death are represented at all stages of
the proceedings from trial through clemency by qualified, adequately compensated counsel." Id.

Published by Scholarly Commons at Hofstra Law. 2008

 Hofitra Law Review, Val. 35,155. 3 [20081.Art. 5

766 HOFSTRA LA W REVIEW [VOL 36:763

grant constitutionally mandated relief and costly retn‘als in numerous

cases.

Since their approval in 2003, the revised ABA Guidelines have

been recognized as national standards regarding the obligations of
jurisdictions and defense counsel in capital cases.9 They have provided
important guidance to judges and defense counsel regarding the
minimum requirements of competent and effective legal representation.
Courts have increasingly turned to the ABA Guidelines when deciding
whether defense counsel’s performance met the requirements of the
Sixth Amendment and delivered the “high quality” legal representation
that each capital defendant and death-sentenced prisoner deserves. '0
The revised edition of the ABA Guidelines greatly expanded and
updated an earlier set that had been published in 1989.” In addition to
taking into account intervening legal and case law developments,” the
ABA Advisory Committee” also identified areas of legal practice that
had proved particularly problematic and sought to provide specific
guidance to remedy some of the most serious mistakes made by counsel
and other actors in the criminal justice system.
One of these errors was the fiequent failure of defense counsel to
investigate and present mitigation evidence during the penalty phase of a
capital trial. This was true despite the fact that the importance of
mitigation evidence was not a new concept. It has long been held that

8. Robbins, supra note 6, at 16 (foomote omitted).

9. "The objective of these Guidelines is to set forth a national standard of practice for the
defense of capital cases in order to ensure high quality legal representation for all persons facing the
possible imposition or execution ofa death sentence by any jurisdiction.” ABA GUIDELINES, supra
note l. at Guideline l.l(A).
lO. More than eighty state and federal death penalty cases. including cases decided by the
United States Supreme Court, cite the ABA Guidelines as authority in eases in which the
performance and obligations of defense counsel are considered. See ABA, Cases that Cite to the
ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases,
http://www.abanet.orydeathpenalty/resources/docs/List_of_Cases__that_cite_to_GL_MAR_
2008.doc (last visited May ll, 2008).
ll. See ABA GUIDELlNES, supra note l, at introduction; see generally 1989 GUIDELINES,
supra note 4.
l2. Among these was the passage of the Anti-Terrorism and Effective Death Penalty Act
(AEDPA) in l996 which, inter alia, established strict deadlines for the filing of federal habeas
petitions. limited the scope of review of state court decisions, severely restricted the ability of
prisoners to file successive petitions, and generally limited the availability of federal habeas for state
prisoners. See ABA GUIDELINES, supra note l, at Guideline l.l, commentary n34.
l3. Members of the ABA Advisory Committee included experienced capital defenders,
volunteer death penalty lawyers, law school professors, representatives from national defender
organizations and members of many ABA Sections. including the Criminal Justice Section. For a
complete list of Advisory Committee Member's, see id. at Acknowledgements.

http://scholarlycommonsJaw.hofstra.edu/hlrlvolas/iss3/5
 Maher: The ABA and the Supplementary Guidelines for the
Mitigation Funct

2008] THE ABA AND THE SUPPLEMENTARY GUIDELINES 767

“[fjor the determination of sentences, justice generally requires . . . that

there be taken into account the circumstances of the offense
together
with the character and propensities of the offender.””
Mitigation
evidence took on a more urgent importance afier the
Supreme Court
reinstated the death penalty in 1976. In
Gregg v. Georgia,” the United
States Supreme Court believed it c0uld eliminate concem
about the
arbitrariness of the death penalty with a bifurcated trial
procedure.” The
Court sought to guide and narrow a jury’s discretion in a discrete
penalty
phase and permit it to consider specific information about the
appropriateness of sentencing a particular defendant to death:
Since the members of a jury will have had
little, if any, previous
experience in sentencing, they are unlikely to be skilled in dealing with
the information they are given. . . . To the extent that this
problem is
inherent in jury sentencing, it may not be
totally correctable. It seems
clear, however, that the problem will be alleviated if the jury is
given
guidance regarding the factors about the crime and the defendant that
the State, representing
organized
7
society, deems particularly relevant
to the sentencing decision.

The Court went on to explain:

[T]he jury’s attention is focused on the characteristics of the person

who committed the crime: Does he have a record of
prior convictions
for capital offenses? Are there any special facts about this defendant
that mitigate against imposing capital punishment
(e.g., his youth, the
extent of his cooperation with the police, his emotional state at the time
of the crime)"

To achieve the objective of “individualizing sentencing”'9 in

capital
cases, therefore, it was clear that defense counsel had to
develop and
present a detailed picture of the defendant’s background, character, and

l4. Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. Si. 55

U937); see also Williams v.
Oklahoma, 358 U.S. 576, 585 (I959); Williams v. New York. 337 U.S. 241. 247
(I949). Otherwise,
“the system cannot function in a consistent and a rational manner." ABA PROJECT 0N
STANDARDS
FOR CRIMINAL JUSTICE, STANDARDS RELATING TO: SENTENCING ALTERNATIVES AND
PROCEDURI
201 (Approved Dran I968); see PRESIDENT’S COMM‘N 0N Law
ENFORCEMENT AND ADMIN. or
JUSTICE, THE CHALLENGE or CRIME IN A FREE SOCIETY I44 (1967); MODEL PENAL CODE 7.07
§
cmt. I (Tentative Drafl No. 2, I954).
l5. 428 U.S. l5] (I976).
I6. Id. at I95.
I7. Id. at I92 (citation omitted); see aisa ABA PROJECT 0N STANDARDS FOR
CRIMINAL
JUSTICE, Supra note l4, at 46-47; PRESIDENT'S COMM’N 0N LAW ENFORCEMENT AND ADMIN. 0F
JUSTICE, supra note I4, at I45.
I8. Gregg, 428 U.S. at I97.
.
I9. See Woodson v. North Carolina, 428 U.S. 280, 304
(I976).

Published by Scholarly Commons at Hofstra Law, 2008

 Hofstra Law Review, Vol. 36. Iss. 3 [2008], Art. 5

768 HOFSTRA LAW REVIEW [VOL 362763

life experiences to the jury. To present a complete portrait, however,

counsel had to move well beyond the limited statutory factors that most
capital sentencing statutes identified.20 Experience taught them that the
best mitigation evidence was found on front porches in conversations
with family members, and in discussions with school teachers who
remembered the neglected and abused children from their classes years
earlier. There was no blueprint for the mitigation investigation that had
to occur for a client’s life to be saved. But these compelling details had
the potential to transform the prosecution’s “monsters” and “cold-
blooded killers” into tragic figures for whom juries could find mercy.21
Mitigation evidence took center stage in death penalty cases as
potentially the only way defense counsel could humanize their client and
save his life.
It was surprising, therefore, that notwithstanding its literal life and
death significance, the ABA Advisory Committee found many cases
where a thorough and independent investigation and presentation of
mitigation evidence had not occurred.22 Worse, appellate decisions lefi
no doubt that the result would have been different if the jury had heard
the mitigation evidence at trial.23 Given the general unavailability of

20. Statutory mitigating factors generally track the language proposed by the Model Penal
Code. MODEL PENAL CODE § 210.6(3)-(4) (Proposed Ofiicial Drafi 1962), quoted with approval in
Gregg, 428 US. at 193 n.44. For examples of statutes that track the mitigating factors of the Model
Penal Code, see 18 U.S.C. §3592(a) (2000); ALA. CODE § I3A-5-51 to -52 (2006); Amz. REV.
STAT. ANN. § l3-703(G) (2007); ARK. CODE ANN. §5-4-605 (2006); CAL. PENAL CODE § 190.3
(West 1999); mm. REV. STAT. ANN. § 18.1 .3-1201(4) (West 2007); FLA. STAT. ANN. § 921.14I(6)
(West 2006); 720 lLL. COMP. STAT. ANN. § 5/9-l(c) (West Supp. 2007); IND. CODE ANN. § 35-50-
2-9(c) (West 2004 & Supp. 2007); KAN. CRIM. CODE ANN. § 21-4626 (West Supp. 2007); KY. REV.
STAT. ANN. §532.025(2)(b) (Lexischis I999 & Supp. 2007); LA. CODE CRIM. PROC. ANN. an.
905.5 (1997); MD. CODE. ANN., CRIM. LAW § 2—303(h)(2) (LexisNexis 2002 & Supp. 2007); MISS.
CODE ANN. §99-l9—10|(6) (West 2006); Mo. ANN. STAT. § 565.0320) (West 1999); MONT. CODE
ANN. (54648-304 (2007); NEB. REV. STAT. ANN. §29-2523(2) (LexisNexis 2003); NEV. REV.
STAT. ANN. § 200.035 (West 2000); NH. REV. STAT. ANN. § 630.5(Vl) (2007); NM. STAT. ANN.
§31-20A-6 (West 2003); NY. CRIM PROC. LAw §400.27(9) (McKinney 2005); NC. GEN. STAT.
§ ISA-2000“) (2007); OHIO REV. CODE ANN. § 2929.04(B) (West 2006); 42 PA. CONS. STAT. ANN.
§ 97] l(e) (West 2007); S.C. CODE ANN. § 16-3-20(C)(b) (2003); TENN. CODE ANN. § 3943-2040)
(2006); UTAH CODE ANN. § 76-3-207(4) (2003); VA. CODE ANN. § l9.2-264.4(B) (2004); WASH.
REV. Coot: ANN. § 10.95 .070 (West 2002); WYo. STAT. ANN. § 6-2-1020) (2007); OKLA. UNIFORM
JURY INSTRUCTIONS: CRIMINAL OUJ 1—CR 4-79 (Vernon's 2d ed. 2007).
21. See Gary Goodpastcr, The Trial for Life: Eflective Assistance of Couture! in Death Penalty
Cases, 58 N.Y.U. L. REV. 299, 300-03 (1983).
22. See ABA GUIDELINES, supra note I, at Guideline l0.7, commentary n.205.
23. See id; see also Sean D. O‘Brien, When Life Depends On It: Supplementary Guidelines
for the Mitigation Function of Defense Teams in Death Penalty Cases, 36 HOFSTRA L. REV. 693,
716-l7 (2008) (quoting Williams V. Taylor, 529 US. 362, 395, 398 (2000)); Mark E. Olive &
Russell Stetler, Using the Supplementaryl Guidelines for the Mitigation Function of Defense Teams
in Death Penalty Cases to Change the Picture in Post-Conviction, 36 HOFSTRA L. REV. 1067, l069-

http://scholarlycommons.law.hofstra.edu/hlr/volaé/isss/s
 Maher: The ABA and the Supplementary Guidelines for the Mitigation Funct

2008] THE ABA AND THE SUPPLEMENTARY GUIDELINES 769

competent counsel in post-conviction proceedings,” the number of

defendants affected by the failure to find and present mitigation evidence
at trial was incalculable.
It became apparent that the reason for this failure was not that
lawyers did not understand that the development of mitigation evidence
was critical. It was that most of them just did not know how to do it
properly. Lawyers are generally unprepared and ill—equipped to discover
mitigation evidence without expert assistance. The special skills and
abilities necessary to obtain the sensitive and sometimes embarrassing
evidence about a client’s life experiences from family members and
other sources are often beyond the abilities of even the most skilled
courtroom lawyer.” While there is no question that obtaining mitigation
evidence and presenting it at trial and in post—conviction proceedings
remains the ultimate responsibility of defense counsel, it is equally clear
that the assistance of a mitigation specialist is necessary to achieve that
objective.

73 (2008) (discussing Rompilla v. Beard, 545 U.S. 374 (2004); Wiggins v. Smith, 539 U.S. 510
(2003); Williams, 529 U.S. at 362).
24. See Eric M. Freedman, Giarratano ls a Scarecrow.- The Right to Counsel in Stale Capital
Postcanvictian Proceedings, 9| CORNELL L. REV. l079, [086-88 (2006).
25. See ABA GUIDELINES, supra notc l, at Guideline 4.l. commentary (“Mitigation
specialists possess clinical and information-gathering skills and training that most lawyers simply
do not have. They have the time and the ability to elicit sensitive, embarrassing and ofien
humiliating evidence (e.g., family sexual abuse) that the defendant may have never disclosed”);
SUPPLEMENTARY GUlDELlNES FOR THE MlTlGATlON FUNCTION 0F DEFENSE TEAMS [N DEATH
PENALTY CASES, Guideline 5.l(C)-(D), in 36 HOFSTRA L. REV. 677 (2008) [hereinafter
SUPPLEMENTARY GUiDELINES]. As outlined in the Supplementary Guidelines:
Mitigation specialists must be able to identify, locate and interview relevant persons in a
culturally competent manner that produces confidential, relevant and reliable
information They must be skilled interviewers who can recognize and elicit information
about mental health signs and symptoms, both prodromal and acute, that may manifest
over the client's lifetime. They must be able to establish rapport with witnesses, the
client, the client’s family and significant others that will be sufficient to overcome
barriers those individuals may have against the disclosure of sensitive information and to
assist the client with the emotional impact of such disclosures. They must have the
ability to advise counsel on appropriate mental health and other expert
assistance. . . .Thc mitigation specialist must be able to fumish infomation in a form
useful to counsel and any experts through methods including, but not limited to:
genealogies, chronologies, social histories, and studies of the cultural, socioeconomic,
environmental, political, historical, racial and religious influences on the client in order
to aid counsel in developing an affirmative case for sparing the defendant's life.
Id.

Published by Scholarly Commons at Hofstra Law. 2008

 Hofitra Law Review, Vol. 36, 15$. 3 [2008], Art. 5

770 HOFSTRA LA W REVIEW [V0]. 36:763

The ABA addressed this problem in the revised ABA Guidelines

with the concept of the “defense team?“ It made clear the absolute
requirement that capital defenders retain the assistance of a mitigation
specialist as an essential member of any defense team.” The ABA
Guidelines also require jurisdictions to provide the necessary funding to
the defense to hire a mitigation specialist.” The ABA’s
strong
endorsement of the value and importance of mitigation specialists in
capital cases and post-conviction proceedings helped cement their role in
capital cases.
The Supplementary Guidelines for the Mitigation Function of
Defense Teams in Death Penalty Cases (“Supplementary Guidelines”?
are a natural and complementary extension of the ABA Guidelines. They
spell out important features of the existing standards of practice that
enable mitigation Specialists and defense attorneys to work together to
uncover and develop evidence that humanizes the client.” Most
importantly, the Supplementary Guidelines will help defense counsel
understand how to supervise the development of mitigation evidence and
direct a key member of the defense team. This guidance is urgently
needed. In my role as Director of the ABA Death Penalty Representation
Project, I often receive inquiries fi'om judges and lawyers about what
training and experience a mitigation specialist should have before being
appointed and what his or her responsibilities in a capital case should be.
I also receive calls from mitigation Specialists themselves, frustrated
because defense counsel does not understand their role and what they
need by way of support and direction. The Supplementary Guidelines
will provide answers to many of those questions, continuing what the

26. ABA GUIDELINES, supm note l, at Guideline 4.]. The “defense team" should comprise a
minimum of two attorneys, one investigator, and one mitigation specialist. Id. at Guideline
4.1(AX1).
27. Id. at Guideline 4.1.
28. Id. at Guideline 9.1.
29. SUPPLEMENTARY GUIDELINES. supra note 25.
30. See id. at Guideline 4.l(A)-(B). The Supplementary Guidelines describe the duties of the
utilisation specialist,
In performing the mitigation investigation, counsel has the duty to obtain services of
persons independent of the government and the right to select one or more such persons
whose qualifications tit the individual needs of the client and the case. . . . Counsel has a
duty to hire, assign or have appointed competent team members; to investigate the
background, training and skills of team members to determine that they are competent;
and to supervise and direct the work of all team members. Counsel must take whatever
steps are necessary to conduct such investigation of the background, training and skills
of the team members to determine that they are competent and to ensure on an ongoing
basis that their work is of high professional quality.
Id.

http://scholarlycommons.law.hofstra.edu/hlr/volss/isss/s
 Maher: The ABA and the Supplementary Guidelines for the Mitigation Funct

2008] THE ABA AND THE SUPPLEMENTARY GUIDELINES 771

ABA Guidelines began when they first described the unique role and
responsibilities of mitigation specialists.“
For volunteer attorneys recruited by this Project” and other counsel
inexperienced in capital litigation, the depth and scope of an
investigation that meets the demands of the ABA Guidelines and
Supplementary Guidelines can prove daunting.” This task is made
harder with the realization that the vast majority of the men and women
who are charged with or convicted of capital crimes have backgrounds
of violence, abuse, and neglect. As an essential part of any capital case
investigation, families that have carefully hidden shameful secrets of
incest, abuse, alcoholism, and mental illness for generations must now
be persuaded to disclose these details. It is a difficult and intimidating
process. These are not secrets that will be revealed to strangers on the
first visit, or even perhaps the third or fourth. Yet the damaging and
destructive nature of these secrets is the very evidence that might
convince a jury to spare a client’s life.
The crisis of counsel that exists in the death penalty system means
that we must rely on the good will and assistance of members of the
private bar to represent death row prisoners without counsel.“ Many of
the volunteer lawyers that I recruit have never handled a death penalty
case before.” Developing mitigation evidence and making a case for the
life of their client is one of the most important tasks defense lawyers

31. ABA GUIDELINES, supra note I, at Guideline 4.1(3), commentary.

32. For a list of volunteer firms recruited by the ABA Death Penalty Representation Project
since 1998, see ABA, Volunteer Law Firms Death Penalty Representation Project,
http://www.abanet.org/deathpenalty/participatingfinns/home.shtml (lust visited May l 1, 2008).
33. Daniel S. Brennan is a volunteer lawyer from DLA Piper who was recruited by the Project
to represent a death-sentenced man without counsel in a southern jurisdiction. "We really were
gasping for where to start," said Brennan about beginning the mitigation investigation without the
assistance of a skilled and experienced mitigation specialist. Afler a mitigation specialist joined the
defense team, they found evidence to support the claim that their client was mentally retarded and
succeeded in obtaining an evidentiary hearing on the question of the client's eligibility for a death
sentence. ”We had to learn to keep an open mind," said Brennan.
We didn‘t always know where to look and what we should be looking for. Our
immediate reaction to some evidence was that it might not be useful; but then she’d turn
it around and help us understand how it would help our case. Oflen it would lead to other
evidence that was useful. She helped us map out a strategy and understand the case we
needed to make for our client. I know we would not have been sawy enough to
understand that without her assistance.
E-mail from Daniel S. Brennan, Partner. DLA Piper US LLP, to Robin M. Maher. Director. ABA
Death Penalty Representation Project (Mar. 4, 2008, 18:07) (on file with author).
34. See Robin M. Maher, Volunteer Lawyers and Their Extraordinary Role in the Delivery of
Justice to Death Raw Prisoners, 35 U. TOL. L. KEV. 519 (2004).
35. However. while many volunteer lawyers have not previously handled n death penalty
case. it is nonetheless possible for these lawyers to provide adequate representation. See id. at 521.

Published by Scholarly Commons at Hofstra Law, zoos

 Hofitra Law Review, Vol. 36,135. 3 [2008], Art. 5

772 HOPSTRA LA WREVIEW [VoL 36:763

must handle. But unlike the law of capital punishment, which they will
eventually learn and master, developing mitigation evidence that may
result in a different sentence for their client is not easy for volunteer
lawyers, even when they are among the country’s top litigators. For out-
of-state lawyers who volunteer far from home, even the local accents are
sometimes hard to understand. As a matter of survival, many families
and communities have learned to conceal information about illegal
activity and harmful behavior from strangers. This compelling and
potentially life-saving evidence is often invisible to the untrained eye.
It is in this way that mitigation specialists—skilled in interviewing
techniques, experienced in developing social histories, knowledgeable
about cultural and racial differences, expert in recognizing the signs of
mental disorders and impainnents—do what most lawyers are simply
unable to do. The evidence that a competent mitigation expert gathers
will provide defense counsel with the tools that can save her client’s
life—counsel’s ultimate responsibility. Without this evidence, it is
impossible for defense counsel to represent her client effectively.“
The Supplementary Guidelines assist defense counsel in choosing
and supervising the work of mitigation specialists throughout the course
of the investigation. For inexperienced counsel, this guidance will be
indispensable. Hiring a mitigation specialist who does not have
appropriate training, skills, and experience is as disastrous as not hiring a
mitigation specialist at all. In either case, the evidence is unavailable.
The results of any mitigation investigation are only as good as the
person seeking the evidence. Mitigation specialists must know where to
look, who to talk to, and how to analyze the information properly. The
Supplementary Guidelines provide important information to defense
counsel about who they should hire and what mitigation specialists
should do during the course of an investigation.”
Like other professionals, mitigation specialists must be given the
necessary tools to perform competently. Judges who use the
Supplementary Guidelines will understand why they must ensure
adequate funding and avoid placing unreasonable limits on the ability of
mitigation specialists to interview witnesses and travel for in—person
interviews.” Appellate judges will better understand the mitigation

36. See, e.g., Wiggins v. Smith, 539 U.S. 5 IO (2003) (holding that defense counsel's failure to
present existing mitigation evidence fell short of professional standards); see also supra note 22-23
and accompanying text.
37. SUPPLEMENTARY GUIDELINES, supra note 25, at Guidelines 5.], lO.l i.
38. See Helen G. Ben'igan, The Indispensable Role of the Mitigation Specialist in a Capital
Case, 36 HOFSTRA L. REV. 819, 823-27 (2008).

http://sch0|arlycommons.law.hofstra.edu/hlrlv0136/iss3/5 10
 Maher: The ABA and the Supplementary Guidelines for the Mitigation Funct

2008] THE ABA AND THE SUPPLEMENTARY GUIDELINES 773

function and what should have happened at trial.39 The Supplementary

Guidelines provide a detailed description of the scope and breadth of a
mitigation investigation, a process that may span multiple jurisdictions
and involve several generations of a family.“ Mitigation investigations
must begin immediately and often require months of intense effort to
gather the necessary information." Restrictions that limit the ability of
mitigation specialists to meet the requirements of independence and
thoroughness may ultimately prove fatal to the client.
Unsurprisingly, an increased understanding of the value provided
by mitigation specialists has resulted in an unmet demand for the
services of these skilled professionals. In many jurisdictions, there is a
desperate need for trained and experienced mitigation specialists to be
available to defense counsel. I often receive calls asking for referrals to
mitigation specialists, and the volunteer lawyers I recruit rely on me to
find the necessary experts. Too oflen I must tell them that there are not
enough trained and experienced mitigation specialists for all those who
need them.
The Supplementary Guidelines can be used to create training
programs and to recruit gifted and interested individuals to enter this
professional field. This development should be a priority for the criminal
justice community. It is only with the assistance of skilled mitigation
specialists that we can finally deliver on the promise of competent legal
representation for all capital defendants.

In a previous article for the Hofstra Law Review, I wrote about the
importance of the “guiding hand of counsel” in death penalty cases and
the urgent need for reform of the systems that provide counsel to
indigent defendants.42 The most effective way to increase accuracy and
reduce the number of wrongful convictions43 is to achieve fllis reform.

39. 5:: William M. Bowen, Jr., A Former Alabama Appellate Judge‘s Perspective on the
Miligall'nn Funclian In Capital Cases, 36 Horsm L. REV. 305 (2008) (describing a retired
appellate judge's experiences with, and appreciation of, defense teams in capital eases).
40. See SUPPLEMENTARY GUlDELlNES, supra note 25, at Guideline I0.l L
41. See O'Brien, supra note 23, at 747 n.257; Olive & Sretler, supra note 23. at l078-80.
41. See Robin M. Mailer, The Guiding Hand of Counsel' and the ABA Guidellna for the
Appointment and chfummnce of Definite Counsel in Death Penal/y Cases. Bl HOFSTRA L REV
l09l, l09l-95 (2003).
43. As of Febnlary 2008. IN people in 26 states have been released from death row since
I973 with evidence of their innocence. Death Penalty Information Center, The Innocence List.
htqrzllwwwdenthpelultyinfo.org/article.php?scid=6&did=I l0 (list visited May I l. 2008).

Published by Scholarly Commons at Hofstra Law. 2008

 Hofitra Law Review, Vol. 36, Iss. 3 [2008], Art. s

774 HOFSTRA LA WRE VIE W [V0]. 36:763

The unwillingness of too many death penalty jurisdictions to do so

remains one of the most shameful and profound failures of our criminal
justice system. As the ABA Task Force stated in 1990:
[Cjapital litigation in the United States today too ofien begins with
poor legal representation. Thereafter, the petitioner, the state, and
society pay the price as each successive stage of the case becomes
more complicated, more protracted, and more
costly. Poor
representation afler the trial is also not uncommon, and it, too, imposes
costs—in terms of both efficiency and faimess—at each successive
stage of the litigation. The goals of better, more efficient, and more
orderly justice can be achieved when the of legal representation
at all stages of capital cases is improved. 4quality

Our experience in death penalty cases has taught us a great deal

over the years. We now understand that effective legal representation
requires the work and commitment of a defense team of skilled
professionals, including a mitigation specialist. We know that a pool of
expertise and skill is needed to competently perform the high-wire act of
defending a human being on trial for his life. And we appreciate the
significant difference that effective legal representation makes in
determining an outcome of life or death.
The Supplementary Guidelines join the ABA Guidelines as
important tools for all those who seek to ensure justice for the men and
women on death row. They will enhance the work of capital defenders
and mitigation specialists. They will inform jurisdictions that must make
decisions about the resources and assistance that defense teams require.
They will educate judges who have questions about mitigation evidence
and the professionals who develop it. While we remain far from our
objective of ensuring justice and fairness for all those facing possible
execution, the Supplementary Guidelines further our progress toward
reaching that goal.

44. Robbins, supra note 6, at 27.

http://scholarlycommonslaw.hofstra.edu/hlr/volsclisss/5 [2