Why and how to use a Mitigation Specialist in a non-capital case
Attorneys who represent clients in capital cases are familiar with the requirement that someone be able to recognize the presence of mental health and psychological impairments serve as a member of the defense team. These professionals, mitigation specialists, are qualified by training and experience and can be valuable in non-capital cases as well.
The title “mitigation specialist” in the non-capital case context may be misleading as it might suggest that counsel wants an expert simply to help mitigate the crime and get a lower sentence. In fact, these professionals can uncover evidence that may serve as a defense to a charge, lead to evidence that undercuts an involuntary confession, or in some other way helps defend the case.
What is a mitigation specialist?
A mitigation specialist is a member of the defense team that typically has a bachelor’s or master’s degree in social work, psychology, counseling or a related field and can provide expert insight into recognizing a defendant’s possible mental health, developmental disorders, intellectual disability, history of neglect, abuse and addictions. Indigent Defense Services has these Standards for Mitigation Specialists in Capital Cases.
Why use a mitigation specialist in a non-capital case?
A mitigation specialist has clinical and information-gathering skills that most lawyers do not have. They have the ability to recognize mental health conditions that may have affected the defendant. They can help the defense team to identify the most appropriate experts to examine the defendant. A mitigation specialist can document the psycho-social history of the client through record collection and review, interviews from important witnesses, and information about the social history of the client’s life. The mitigation specialist can often perform these tasks more efficiently and effectively than attorneys or other experts on the case, making their assistance cost-effective. The information they uncover can be used to present a cohesive theory of the case and make a compelling argument for a mitigated sentence. Mitigation specialists can often digest records into a chronological timeline or social history, using charts and pictures that can be helpful in succinct presentations to the state for negotiations. The close rapport that mitigation specialists maintain with clients and client family members can be an important part of successfully negotiating a plea in a case.
How do I find a mitigation specialist?
IDS maintains a roster of mitigation specialists. Vicky McGee, mitigation coordinator, is responsible for training mitigation specialists and maintaining the roster. She is an excellent resource for finding a mitigation specialist with the qualifications needed for a specific case, proximity to client and whether or not a mitigation specialist has room on their caseload to take your case. This can save you time. Vicky can be reached at firstname.lastname@example.org or 919-673-3122.
How do I get funding for a mitigation specialist in a non-capital case?
In a court-appointed case, attorneys can seek funding for a mitigation specialist using the AOC-G-309 form and an ex parte motion for expert funding. Information about working with experts and seeking funding for experts is available on the IDS Forensic Resources website here. While it is not routine for courts to order funding for a mitigation specialist in a non-capital case, counsel should highlight the necessity and cost-effectiveness of using such an expert on a particular case. The motion needs to be based on a fact-specific showing of need, so prior to making the motion, the case must be investigated well enough to make an appropriate showing.
Thank you to Vicky McGee, Stephanie Bouis, and Zach Rowles for their assistance with this post.