In the first of the DPRU's new series of Q&As with death penalty experts from around the world, Hannah Gorman, Director of the Florida Center for Capital Representation (FCCR), tells DPRU Research Officer Daniel Cullen about her current work as a mitigation specialist and the role of mitigation in US capital cases.
What is the context of your current work?
Five years ago, I landed in Florida and began tracking all first-degree murder and death penalty cases statewide, from indictment to execution. Since 2016, the state has been overwhelmed in litigation and overburdened with a tremendous backlog of cases, and more recently this has been exacerbated by the impacts of the COVID-19 pandemic.
Today, I am the director of the Balanced Justice Project (BJP) at Florida International University (FIU) Law Clinic and I use this data to inform my work as a mitigation specialist, identifying and prioritizing those at high risk of execution. I work with, train, instruct and am instructed by a huge variety of mitigation specialists. Together, we are creating a career pathway for the next generation, to ensure the essential mitigation work is continued to the highest possible standards.
What exactly is ‘mitigation’?
Mitigation, in its everyday ordinary use, is to make something less harmful. In application to criminal law, it means to reduce a penalty or sentence. It is at the heart of the system and necessary at every stage in a criminal case, beginning to end – so this means determining mens rea with respect to elements of the offense charged, plea negotiations, and, in capital cases, the death penalty waivers, sentencing, parole and clemency.
In US death penalty cases, mitigation can be the reason for finding life over death for decision makers: for a prosecutor deciding whether to seek the death penalty or for a juror or judge deciding on a life sentence in the event the case goes to trial. Failure to investigate and present mitigating evidence renders counsel ineffective in violation of the right to legal representation.
The law is very clear: mitigation is inexhaustible, all-inclusive and not to be precluded. Death penalty statutes refer to common factors such as a lack of significant criminal history, age at the time of the offense, acting under extreme mental or emotional disturbance, or circumstances of the offense that could impact culpability or proportionality of the sentence (victim participation, relatively minor participation, duress), but includes a catch-all “other factors related to background and character” provision. A person’s military service and the trauma they suffered in combat, could, and, for the most part should, be included in mitigation. A juror can in principle find anything mitigating and choose to sentence a person to life over death on that basis.
What is the role of a mitigation specialist?
In a US capital case, the mitigation specialist is one of the four members of capital defense team. To fulfill their duty to investigate mitigation, lead counsel must assemble a team of:
“No less than two qualified attorneys, an investigator and mitigation specialist, with at least one member being qualified by training and experience to screen for the presence of mental and psychological impairments.”
The mitigation specialist is often the member qualified to screen for the presence of psychological impairments, although they are not to be confused with the role of an expert. The mitigation specialist does not perform psychological evaluations and testify to the effect as an expert would. Rather, they support the team by collecting and analyzing records, interviewing potential witnesses (family, teachers, employers, community leaders, doctors etc.), identifying and instructing appropriate experts, and creating methods to best present the narrative of the client’s life and provide a social context to the offense. Their job is to humanize the client so that the decision-maker can make the best decision – an informed one.
It can take hundreds or even thousands of hours to develop relationships and build the trust required to obtain the information. This works includes frequent visits with the client, regular communication with the client’s family and multiple interviews with witnesses. The task becomes more complicated when the client is a foreign national or the case has an international dimension.
In one case, for example, I had to travel to Kazakhstan to meet with a crucial witness, which required extensive liaison with local officials to gain entry and the identification of a fixer to navigate the landscape, not to mention to overcome language barriers.
How do people qualify as a mitigation specialist?
Regulations vary from state to state: some have no regulations governing mitigation specialists and simply require the submission of a C.V. to the court in order to be appointed. Others, like Florida, regulate the activities of mitigation specialists under private investigation licensing: you must hold a Private Investigator (PI) license unless you are exempt by virtue of a Florida bar, clinical psychology or social work license.
Inevitably, these three licenses provide some of the skills required to be a competent mitigation specialist: the lawyers possess the legal knowledge and skills, and the psychologists and social workers possess the clinical knowledge and skills to screen for mental illness. However, to be an effective mitigation specialist the lawyers must learn the clinical skills to screen, and the clinicians must learn the law. Those licensed via the PI route must learn both.
Mitigation does not feature in the PI training process unless your requisite two-year internship is undertaken with a PI agency that specializes in mitigation. In the case of Florida, there are some committed lone practitioners who have taken people under their wing and the BJP at FIU Law Clinic became the first agency to be established in an educational institution to offer this training program.
Whilst the PI route in Florida is concerning at first glance, navigated properly to deliver the appropriate training and experience, it provides access to a fertile training ground for the next generation and increases capacity within the state to provide competent mitigation specialist services.
What kinds of backgrounds do mitigation specialists have?
Mitigation specialists come from a rich, diverse range of backgrounds and possess varied skillsets. Many come from backgrounds in social work, psychology or law, others from investigative journalism or anthropology, and some from teaching or acting. There are also a few practitioners who were once themselves on death row before being exonerated. But so long at the individual has the necessary training and experience, it matters not what their background is for qualification purposes.
A mitigation specialist’s background matters when it comes to building a culturally competent team. For example, if a legal team is representing a client from Cuba, it is critical that team understands the Cuban culture and speaks Cuban Spanish. If possible, the team should recruit a mitigation specialist who is Cuban and is familiar with Cuban culture and fluent in the language.
In one case I worked on, a mitigation specialist’s familiarity with religious norms meant that evidence could be presented to dissuade the jury from thinking that the client was engaged in satanic rituals during the incident. This is why it is so important to recruit, train and retain a diverse pool of mitigation specialists in the community.
Mitigation is a hugely important role in the capital defense team and finding the person with the right skills and expertise for a particular case can and should be one of the most informed and crucial decisions that the team makes. For their part, mitigation specialists should be ready to educate themselves, be aware of their limitations and be prepared to collaborate and call in other specialists when needed. In cases where this has taken place, lives have been saved.
Hannah Gorman is Director of the Florida Center for Capital Representation (FCCR) at the Balanced Justice Project (BJP), Florida International University Law Clinic. She is a UK-US (NY) attorney with a license to practice as a mitigation specialist in Florida. She has worked on death penalty cases for 16 years. Hannah, trains, is instructed as, and instructs others on mitigation investigation in both capital and non-capital cases. She has a special interest in restorative legal practices as well as international mitigation and has worked on cases in the US, South-East Asia and the Middle East exchanging best practices related to the introduction of mitigating evidence.
 Hannah Gorman and Margot Ravenscroft, ‘Hurricane Florida: The Hot and Cold Fronts of America’s Most Active Death Row’ (2020) 51(3) Columbia Human Rights Law Review 935.