The role of mitigating evidence in capital cases

Between 14 July 2020 and 16 January 2021, the United States executed 12 men and one woman. This execution spree took place during a global pandemic and while the United States was in the midst of a contentious presidential election and transition – a time of significant distraction, loss of life and personal hardship to scores of Americans.

My client, Wes Purkey, was the second person to die. Wes was sentenced to death in 2003 for killing 17-year old Jennifer Long. He was executed early in the morning on 16 July, after the order for his execution had expired and with litigation still taking place. Wes’s final words included his genuine remorse for taking Jennifer’s life, which he had expressed often. His last thoughts were with his daughter who he loved so much. 

As a mitigation specialist, my job is to get to know all I can about my client. In 2015, after over a decade working on death penalty cases, I started a non-profit organization focused on providing mitigation investigation in capital and non-capital cases where defendants could not afford to pay for these services. I do not run an innocence project – most (though not all) of the men I have worked with are responsible for the death of another human being. In learning as much as possible about my client, my role on the defense team is to help collect evidence that can provide context for the irreparable harm caused by my client. Collecting potentially mitigating evidence is painstaking and detailed work that involves spending hundreds of hours with the client, members of their family, members of their community and others who have known them; this includes people who the client has harmed, sometimes profoundly. Over the five years I worked with Wes, I got to know scores of people with whom he connected. These relationships were complicated, but helped me understand the profound trauma and resilience Wes embodied until his death.

Wes could not recall and in many instances had never known the full story of his life. Because no person is able to recall, describe or even know all the ways in which they have been impacted, mitigation investigation relies on the collection of information from various sources including records, archives and subject research. Document collection spanning at least three generations of the client’s family is undertaken to make sure that patterns of behavior, medical conditions, generational trauma and other impacts can be seen and understood in the context of the client’s development. Synthesizing the volumes of information for the defense team to rely on and to form the basis for decisions about the type of experts needed in the case requires a systematic approach, utilizing digests, timelines, investigation plans and other documents. Since it is not possible to know in advance what evidence might tip the scale in the direction of sentencing a defendant to life versus death, mitigation cannot be limited by statute. Due to the central role that mitigation evidence plays in death penalty cases, the information that can be presented is therefore virtually limitless.

Yet when the legal frame is stripped away from mitigation, it can more simply be understood as the story of a life: what came before, how the life was shaped and what opportunities existed for that life to be nudged in a different direction, among many other questions. Having investigated the lives of over 50 men who have faced capital punishment, I have learned that mitigation creates the opportunity for contradictory feelings to be held simultaneously – it permits feelings of anger for the devastating harm caused, but allows for the recognition of the humanity of the person who caused it. At its best, mitigation evidence therefore results in the easing of retributive responses to crime and for sentences that permit intrinsic human dignity to remain.  

In the United States, capital punishment has a long history of being unevenly applied. Those who are most likely to receive a death sentence are already some of the most vulnerable and marginalized, such as indigenous people and people of color, the poor, those with mental illness, people with disabilities and individuals with inadequate or no social support. In Wes’s case, his mother drank throughout her pregnancy with him. He was sexually, physically and emotionally tormented and abused by every single adult who should have protected him – his mother, his father, his grandmother and a Catholic priest. Wes suffered a series of significant brain injuries from car accidents when he was an adolescent – one of which left him in a coma for nearly two weeks. Any one of these events could be enough to break a person completely, yet Wes tried to be better: he sought out therapy during his various incarcerations, he worked hard to obtain his education, he became a skilled plumber and he sought to work with younger inmates to help them change their behaviors before release. Though Wes’s life is one of the most traumatic I have known, and was yet another reminder of the need for real support and intervention to be given to survivors of rape, incest and abuse, his also contained story after story of survival and transformation. So did the lives of all who were executed last year and early into this year.

A year after Wes’s death, federal executions have stopped again. As President Biden was sworn into office the dizzying procession of executions came to an abrupt, but possibly temporary, end. Yet the systems that allowed the spree of executions under the previous administration remain in place. It is all too clear that policies and legislation can swing like a pendulum from year to year, leaving those who are no less deserving of mercy at constant risk. Mitigation that is developed and provided early in a case is the one approach able to break that cycle permanently, by constantly introducing evidence of the value and dignity of human life before a death sentence is given.

Elizabeth Vartkessian Ph.D. (DPhil) is a mitigation specialist and the founding Executive Director of Advancing Real Change, Inc., a US based national non-profit with offices in Baltimore, Maryland, and Jacksonville, Florida, dedicated to conducting high-quality life history investigations in criminal cases. To learn more about Advancing Real Change, Inc. visit, www.advancechange.org.