Mitigation Specialist

A mitigation specialist is a trained member of a criminal defense team who investigates a client’s life history, so the court can see the whole person and not only the charge. In a death penalty case, this work can decide whether a jury hears the full story at sentencing.

Why Capital Defense Teams Need One

The American Bar Association’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (revised February 2003) call for a defense team of at least two attorneys, an investigator and a mitigation specialist (Guideline 4.1). In Wiggins v. Smith, 539 U.S. 510 (2003), the U.S. Supreme Court held that a defense team’s failure to investigate the client’s background and life history fell below what the Sixth Amendment requires.

A mitigation specialist is not another attorney and does not replace the investigator. The role is its own, and it exists to find, organize and explain the facts that argue for a sentence less than death.

What a Mitigation Specialist Does

Mitigation specialists bring clinical and information-gathering skills that most lawyers do not have. They can draw out sensitive and painful facts, such as childhood abuse, that a client may never have told anyone. They can recognize signs of mental, neurological or developmental conditions and help the team understand how those conditions affected the client’s behavior. They collect and analyze large amounts of psychological, psychiatric, police, school and family records. They also help the team decide when to bring in medical or psychological experts, and they work with those experts to build a complete case in mitigation.

Background and Training

Most mitigation specialists have advanced education, often a graduate degree in social work or psychology, along with a background in criminal justice and capital defense. They also have to be skilled at talking with people in a calm, non-confrontational way about difficult subjects. National organizations, including the National Alliance of Sentencing Advocates and Mitigation Specialists (NASAMS), have published criteria for people entering this field.

The Records and Interviews Involved

For a death penalty case, a mitigation specialist has to identify, locate and obtain the records ever created about the client, and about the client’s immediate and extended family. These include:

• Birth certificates and hospital birth records
• Medical records from physicians, clinics and hospitals
• School records
• Social service records, and records from agencies and foster homes
• Juvenile and adult criminal records
• Probation and parole records
• Employment and military records
• Psychological and psychiatric records

The work goes beyond gathering paper. The mitigation specialist interviews the client and as many people as possible who have known the client, such as:

• Family members, spouses and ex-spouses, partners and ex-partners
• Friends and neighbors
• Teachers, counselors, church members and Sunday school teachers
• Co-workers, employers and military peers
• Physicians, nurses, mental health providers and social services personnel
• Probation officers, parole officers, attorneys, guards and police officers

How the Findings Are Used

Once the records are collected and the interviews are done, the mitigation specialist reports to the trial lawyers what was learned and where more exploration is needed. The specialist may also recommend experts to look into medical or psychological questions. Working with the rest of the team, the specialist helps the lawyers understand the life circumstances that support the mitigating factors a jury may consider. The goal is a clear, documented account the defense can present at sentencing and defend if the State challenges it.

How Grate Detections Supports Defense Teams

Dustin Grate has worked as a defense investigator on many death penalty cases, along with murder, attempted murder and sexual assault cases. Grate Detections is licensed by the Nevada Private Investigators Licensing Board (PILB 1782), by California (PI 188095) and by Arizona (PI 1766007). To see how we work with attorneys, read about our criminal defense investigations, our criminal defense background process and our attorney support. Attorneys can call (775) 691-6527 at any time.