Tell the Client's Story Mitigation in Criminal and Death Penalty Cases

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  • Edition: 1st
  • Format: Paperback
  • Copyright: 2018-03-07
  • Publisher: American Bar Association
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Tell the Client's Story provides litigation teams the best strategies for effective mitigation work in criminal and capital cases. Top mitigation experts from across the nation with demonstrated practice wisdom will help readers to successfully litigate complex criminal cases. The book also utilizes significant legal, social science, and behavioral science research findings that will inform practitioners on multi-disciplinary approaches to crafting courtroom strategy. Using practical case studies, surveys, checklists, and appendices that are grounded in multi-professional scientific and clinical literatures, this book will give readers approaches to cogently and persuasively present mitigation evidence to decision makers. In addition to understanding the law and ethics of mitigation, you will learn how to:

  • Develop consistent arguments for life imprisonment-- rather than death-- and mitigated sentences in other criminal cases through effective storytelling and theme-building;
  • Build productive relationships with clients, witnesses, and experts;
  • Utilize the Capital Jury Project's empirical findings for successful jury selection and persuasion;
  • Develop robust case theories;
  • Collect and organize information crucial for compelling mitigation;
  • Create a winning mitigation team and employ the cutting-edge methodology of structured case review;
  • Proactively manage media coverage for positive mitigation outcomes, and
  • Effectively present mitigation evidence at pretrial, voir dire, and penalty phases.

This book will benefit seasoned defense professionals, while also providing crucial guidance for attorneys and other professionals with limited or no experience in mitigation techniques.

Author Biography

Edward C. Monahan is a member of the ABA Death Penalty Due Process Review Project Steering Committee, the ABA Government and Public Sector Lawyers Division Council, and served on the ABA Task Force on Preservation of the Justice System from 2011-12. He is a member of the Steering Committee of the National Association for Public Defense and chairs its Education Committee, a member of the National Association of Criminal Defense Lawyers and co-chairs its Subcommittee on Pretrial Release Advocacy, past chair of the Kentucky Bar Association's Criminal Law Section, a member of the KBA Ethics Committee (2000-2007; 2008-2011) and past chair of the NLADA American Council of Chief Defenders. Ed is a charter board member of the Kentucky Association of Criminal Defense Lawyers and a past president. He is a 1976 graduate of Washington D.C.'s Catholic University of America's Columbus School of Law. Ed.Monahan@ky.gov

James J. Clark, LCSW, Ph.D. graduated from Siena College (B.A. 1980), the University of Kentucky College of Social Work (MSW 1983) and the University of Chicago School of Social Service Administration (Ph.D. 1995). He is currently Dean of the Florida State University College of Social Work. From 2012-2015, he served as the Director of the School of Social Work at the University of Cincinnati, and was on the faculty of the University of Kentucky from 1991-2012, including service as the director of the Ph.D. program and as Associate Dean for Research. He has published in the areas of forensic mental health; child traumatic stress; criminal justice; ethics and accountability; and psychobiography and the study of lives. Dr. Clark has collaborated in interdisciplinary work with public defenders and capital litigators since 1987, and has testified during the mitigation phase of felony and capital trials in Kentucky, Indiana, and Missouri. He continues to consult and testify as a mental health professional in civil and criminal cases. jjclar00@gmail.com

Table of Contents



About the Editors

About the Authors

Introduction: “When Mercy Seasons Justice” —Edward C. Monahan & James J. Clark


Chapter 1 Mitigation Matters —John H. Blume & Russell Stetler

Chapter 2 Competency of Counsel: Mitigation and National Standards of Practice

—Peter A. Joy & Rodney J. Upho?

Chapter 3 The Law and Practice of Voir Dire of Capital

Jurors: Ensuring Jurors Are Merciful—Edward C. Monahan & Lorinda Meier Youngcourt

Chapter 4 Setting the Stage and Listening to What Jurors Have to Tell Us About Mitigation

—Marla Sandys, Elizabeth S. Vartkessian, Heather Pruss, & Sara M. Walsh

Chapter 5 Thinking About the Brain: What Is the Meaning of Neuroscience Knowledge for Capital Mitigation? —Valerie Hardcastle


Chapter 6 Creating and Leading the Mitigation Team —James J. Clark & Edward C. Monahan

Chapter 7 Developing Case Theories: Processes and Methods—Robert Walker

Chapter 8 Mitigation Practice: Turning ‘Defendants' into Persons—Robert Walker and James J. Clark,

Suzanne Hooper, Stephen Tripodi, Sean Kennedy & Edward C. Monahan

Chapter 9 Successful Relationship With a Capital Client: The Paramount Responsibility of the Lawyer

—Margaret O'Donnell

Chapter 10 Investigation and Discovery Strategies for Capital Sentencing —Emily A. Hughes

Chapter 11 Integrating Experts into the Case: A Step Wise Process —Edward C. Monahan & James J. Clark

Chapter 12 Telling the Client's Story: Developing a Consistent Theme for Life Imprisonment

Without Possibility of Parole—Stephen B. Bright

Chapter 13 Special Challenges in Capital Trial Mitigation: Reframing to Communicate the Essence of Your Client

—Sean Kennedy

Chapter 14 Communicating a Client's Mitigation in the Court of Public Opinion: A Comment on “No Comment”

—Edward C. Monahan

Conclusion Resiliently Practicing Hope

Appendix A 1. Capital Case Review Form

2. Facilitator Guide for Case Review

3. Questions and Questioning

4. Mitigation timeline

5. Sample social history

Appendix B

Appendix C

Table of Cases


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