A Texas mitigation specialist explains how she discovered her life’s work: uncovering the dark histories of people facing a death sentence.
A capital case unfolds in two parts: In the “guilt” phase of a trial, prosecutors seek to prove a defendant’s culpability beyond a reasonable doubt. If they win a conviction, a “penalty phase” follows, to decide whether a defendant will receive a death sentence.
The penalty phase is a murkier realm. The Supreme Court added it to capital trials in 1976 (following a four-year de facto moratorium on executions), in an effort to ensure a fairer and less arbitrary way for jurors to determine who should live and who should die.
In the penalty phase, attorneys present “aggravating” and “mitigating” factors. Aggravating factors weigh on the side of culpability: How cruel or heinous was the crime? Was the victim a child? Did the defendant show remorse?
Mitigation is, in essence, the opposite: It can weigh in defendants’ favor during sentencing, by humanizing them for jurors and helping to explain their crimes. But initially, after the 1976 ruling, defense teams had no idea how mitigation might help their clients. “Most lawyers didn’t put mitigating evidence on at all,” said attorney Danalynn Recer, a pioneer in mitigation defense work, who was profiled in the New Yorker in 2011. “A lot of them worried that they’d wind up offending the jury more by trying to excuse the conduct.” (“The Mitigator,” by Jeffrey Toobin, New Yorker)
The job of mitigation specialist was born over the next decade, as anti-death-penalty advocates pioneered a new approach to defending clients during the penalty phase: by describing defendants’ life stories in a way that might help juries understand why they committed the crimes.
Mitigating factors can mean a host of things, from a defendant’s mental health to a history of abuse or drug addiction—anything that might explain what led a defendant down a path of bad decisions, toward the criminal act for which he or she is being held accountable. But mitigation evidence asks: How accountable?
For Nicole Van Toorn, every defendant deserves a vigorous defense—in both phases of trial. As a Texas-based mitigation specialist, she’s a vital part of the legal defense team on capital and post-conviction cases. It’s her job to dig into her clients’ often painful pasts and tell their life stories to juries who must decide their sentences.
With life and death at stake for the clients she helps defend, Van Toorn is fiercely committed to her advocacy role. Pursuit editor Kim Green sat down with her in New Orleans one night to find out how she chose her life’s work and learned the trade.
KIM: How did you discover this line of work?
NICOLE: I began undergrad as a poli-sci pre-law major, and I ended up switching to criminal justice. I absolutely loved it. My first job out of college did not pay very well, but I really enjoyed the work as an investigator in the trial unit in the Saint Louis County public defender office in Missouri.
I’ve been doing it ever since. I went to the federal public defender from there, and then in 2013, I went out on my own. I do the exact same work now, it’s just that I’m contract-based and selected by the private attorneys to be appointed to the case.
KIM: Let’s start by defining terms: Explain what “capital habeas” cases are.
NICOLE: They are the federal appeals of a capital case, where the client has already been convicted. So post-conviction work, and he (or she) is on death row in whatever state.
KIM: What is a mitigation investigation?
NICOLE: Mitigation work is primarily limited to capital cases, although it’s used in some other cases for the purposes of sentencing. When a client is going to trial, and it is a death penalty case, there is the option of the death penalty (of course), life without parole, and sometimes lesser included charges that could give them a term of life in prison—say, 25 years. You are looking for any information in the client’s background to provide mitigating circumstances for why or how the crime may have happened. This is primarily for the purpose of sentencing, because you’re always looking for something less than the death penalty.
It can include their criminal history—whether they grew up in poverty, which many of them do. And you want to look at education, their family, mental health issues, drug abuse—essentially, their entire life, and interviewing folks that knew them, and collecting records to document such.
KIM: Can you explain what “mitigating” and “aggravating” circumstances are?
NICOLE: In “mitigating” information, we’re looking for anything that would help the client out—that is, the “good stuff.” Say, they grew up in a really bad household where they were abused by their parents. Drug use. Victims of violence or crime. Didn’t graduate high school. Poor education opportunities. Mental health issues. Especially undiagnosed mental health issues. Because often we’re talking about poor folks who don’t have access to proper health care. Organic brain damage, where there was a head injury when they were a kid, and growing up where the brain isn’t fully developed before around the age of 21, or so.
Another mitigating circumstance might be age. The younger they are, the less culpable. Or low IQ. A lot of them needed special-ed, and instead were just passed on through school to get them through the system. They never had a chance at a real education, a decent job, anything like that, and so they learn the ways of the street and to survive.
A lot of times, they have intellectual disabilities, and they can’t survive out there on their own, and they often commit crimes in order to get by. Often they start at petty theft and then increase from there. There’s all kinds of reasons why your client might end up finding themselves in a capital trial.
The aggravating circumstances are the “bad stuff.”
KIM: How do you begin your investigation?
NICOLE: In the pretrial phase, you’re collecting evidence and interviewing folks. You would start with interviewing the client. Everything is self-reported from the client, and then you reach out from there. Go to immediate family members, and try to get of the same information and verify it. Lots of interviews. Family interviews, anyone that ever knew your client from birth—or even before, because the mother may have drunk alcohol while she was pregnant or used drugs. You’re going back that far, a couple generations, in fact, for the family health history.
You want it to be a story about your client's life, so you can humanize this guy who has murdered someone, or done some terrible, heinous crime.
Sometimes we’re talking about a client who hasn’t even talked to his own parents or his mother for years, or may have been disowned, or even abandoned. And then they grew up with other family members, or came up through the foster care system.
You would collect documents like school records, or health records from hospitals or clinics—to back up the stories that witnesses are telling you. In fact, you want it to be a story about your client’s life, so you can humanize this guy who has murdered someone, or done some terrible, heinous crime. So you can allow the jury or judge to see that this person is human too, and this is how he or she may have ended up in this situation.
KIM: Do you get upset when a witness lies to you?
NICOLE: No, I don’t get angry. In their mind, I’m sure they justified it, because they didn’t want to admit to the truth—because they were ashamed, or just hiding it for whatever reason. You just go back, and you try to talk to them again. And you’re not accusatory at all, and you don’t even make them aware that you necessarily know that they were not completely truthful. Just see if they’re willing to open up a little more, and they might change their story a bit.
KIM: What kinds of information end up helping your clients the most?
NICOLE: When you find out about undiagnosed mental health issues, or they have an IQ test, and they have a neuro-psych evaluation, or a psychologist interviews them and figures out what issues they may have—often that’s very mitigating, because these things can explain a whole lot about their behavior or their lack of impulse control, anything that likely contributed to the crime.
KIM: Are there any particular cases that stand out in your memory?
NICOLE: Once, I had a case before with a federal public defender in California where the client was ultimately exonerated. They’re out in the free world now, making an honest living. It seems like it never happens to you, but we did have one client, so it was well worth it. Very rewarding.
Another case, it was capital habeas—that’s post-conviction, so your client’s already on death row, but this is their final level of appeal. A lot of times, you’ll see so many things that weren’t done at the trial level, or even the first appeal, their direct appeal, which is automatic—when they’re sentenced to death, they get that direct appeal automatically filed for them, whether they want it or not.
We found evidence of mental health issues where, eventually, after filing after filing by the attorneys and a proper evaluation by a competent neuro-psychologist, the client was eventually given life without parole. They were removed from death row.
Even though that may not seem like a win in some people’s eyes, (the clients) are just relieved to get off of death row. It’s just done. It’s such a relief for them, and they are generally truly thankful.
KIM: What was it like to sit across the table from the client who got off death row? How did he react?
NICOLE: His emotions were just so overwhelming for him that he broke into tears. He had this façade all the way through of he’s a tough guy, and they have to be that way in prison because that’s just the way it is in there. You don’t want to appear weak, so to have this private visit with him in a private room away from any other prisoners, his true emotions then—he could really let loose, and was just so excited really. He was in tears that he was so thankful.
KIM: What do you love about this work?
NICOLE: I’m a people person. For example, when I was working for the federal public defender, there was a paralegal who said, “I don’t have time to listen to that bullshit that everybody in the family’s trying to tell you. That’s just some fucking nonsense.”
Well, I’m here to say, “I would rather listen to people’s nonsense all day long than push paper. So, you can organize your paper, and I’ll do the people.” You’re out in the field. You just meet all kinds of different people. No two days are the same. Every day is different, and I like the variety.
If you're not going to do it, then who is?
Every little bit helps. Because if you’re not going to do it, then who is? Because outside of the public defender system—which, for example, in the state of Texas it only exists to a certain degree—there’s no uniform system throughout. It’s a huge state, and it has one of the largest death rows in the country, so I’m glad to be there, and help out, and be a part of all the capital casework that’s there to be done.
KIM: What would you advise someone interested in becoming a mitigation specialist?
NICOLE: Having once upon a time wanted to be an attorney, I’m so thankful I saved myself that few extra years in school. I found my place by being out in the field instead.
For anyone who doesn’t like the idea of a desk job, this is wonderful. You can be in the legal field, but you’re out seeing different people all the time. It can be very exciting, and you can even choose to do trial work, or post-conviction work.
Every day is different. And for someone interested in criminal justice, or even social work, I think it would be a great opportunity.