Lawyers who handle capital cases – those where the death penalty is the potential punishment – know that building ‘the case for life’ is at least as important as defending against a conviction. Most capitally-charged cases are not brought unless the prosecution has strong if not overwhelming evidence of culpability and mens rea, so the endgame is saving the client’s life.
In the parlance of Eighth Amendment language, this requires finding mitigation evidence, defined as “evidence…the sentencer could reasonably find…warrants a sentence less than death…” Tennard v. Dretke, 542 U.S. 274, 285, 124 S. Ct. 2562, 2570 (2004)(internal citation omitted). But given the relatively modest number of cases per year in which a death sentence is sought by the prosecution, what is the value of a book devoted entirely to the subject of mitigation?
The answer is that great value is offered to any lawyer who has to ‘mitigate’ a client’s conduct. The humanizing of the client at every stage of the trial is one aspect, often known as “front-loading;” and of course the presentation of a story beyond that of the crime or harm itself, the sentencing/punishment/damages story, is a core function of all lawyering.
The art and science of that story-investigation and story-telling have been honed in the capital defense field. A new book, TELL THE CLIENT’S STORY, Edward Monahan and James Clark editors (ABA 2017), captures the decades of research, experimentation and success in a series of discrete but interlocking chapters that are must reading for anyone concerned about contextualizing criminal behavior for both verdict and punishment.
What is noteworthy first is the caliber of the contributing authors. John Blume is a leading research and capital case litigator, particularly involving juror attitudes; Russ Stetler is a legendary figure in the mitigation investigation and presentation field; Stephen Bright has led the Southern Center for Human Rights and taught and litigated nationally; and Valerie Hardcastle is a professor of psychology and behavioral neuroscience. These are illustrative – all eighteen contributors have stellar credentials and experience.
Beyond the contributors lie the contents. TELL THE CLIENT’S STORY is divided into two portions: DISCERNING, a series of chapters on the ‘what’ and ‘why’ of mitigation, including readings on what jurors think and listen for and on the current state of neuroscience and its implications for capital mitigation; and TRANSLATING TO PRACTICE, the ‘how’ chapters of investigating and convincingly presenting the mitigation case.
Particularly valuable are discussions and strategies regarding the use of experts – translatable to every courtroom context; case-theory development; story-telling; and juror beliefs, needs and education. The case is convincingly argued that “mitigation theory development” is the “foundation for case reviews and strategy deliberations.” And the book is intended to offer templates and tools for those in non-capital litigation, be it in the sentencing of juvenile offenders facing life imprisonment or beyond to any and all criminal punishment contexts.
It is not surprising that one of the book jacket’s laudatory blurbs describes TELL THE CLIENT’S STORY as “the Bible of good lawyering for capital clients.” A more measured comment follows from another reviewer – “This new book is an essential guide to help 21st-century criminal defense lawyers learn a skill that is just as important as mastering the rules of evidence, effective cross-examination, or persuasive summation.”
And the reviewers are correct. In a world of criminal litigation where sentencing proceedings predominate and trials occur in only a small percentage of cases, finding and telling the client’s story are the skill lawyers must master, and TELLING THE CLIENT’S STORY is the essential tool.