Notes on Tradecraft: The Mitigation Specialist
First, talk to your client. Learn everything you can about their background. You’re looking for anything in your client’s past “to provide mitigating circumstances for why or how the crime may have happened,” explains Nicole Van Toorn, an independent mitigation specialist in Fort Worth, Texas.
Look for a history of abuse, mental illness, drug use, or an intellectual disability. These factors can weigh against the “aggravating circumstances” of a criminal act—such as the brutality of a crime or an absence of remorse.
The client may have already been convicted and sentenced to death—this is a “capital habeas” case, their final level of appeal. Or they may be facing a capital trial. Either way, you’ll work with defense attorneys and fact investigators. Your job is part PI, part social worker. And the information you gather may help determine your client’s sentence.
You’re looking for a story about your client’s life, “so you can humanize this guy who has done some terrible, heinous crime,” explains Van Toorn. “So you can allow the jury or judge to see that this person is human, too.”
You're looking for a story about your client's life ... "so you can allow the jury or judge to see that this person is human, too."
Next, interview family members, former teachers, friends—anyone who knew your client from birth, or even before. Fetal alcohol syndrome or a family history of mental illness might be considered mitigating factors. So you’ll go back a generation or two in your investigation.
When you approach witnesses, be open and non-judgmental. Listen carefully. Don’t get angry if a witness lies. Try to see things through their eyes.
And if a house is crawling with cockroaches, ignore them.
Be patient: You may need to speak with witnesses many times before they open up about any painful family secrets that made your client who they are. As awful as these stories may be, they’re “good facts” in your line of work—because they may help save your client from execution.
However, don’t be discouraged if that almost never happens. “There is the rare instance,” says Van Toorn. “Just the handful of cases where the client got off death row and got life without parole … so it was well worth it.”
Know that the process is slow. Take comfort in small victories. “I’m only one investigator, but you just have to take it case by case—what you can do for this one person, or what you can do for their family?” Van Toorn says. “I’ve been on cases that I was assigned ten years ago, and there’s still no resolution. You just have to have the mindset for it.”