In its recent decision in the case of State v. Reid, 981 S.W.2d 166 (Tenn. 1998), the Tennessee Supreme Court authorized trial courts to order pre-trial disclosure of a defendant’s intention to use mental health experts at sentencing.  This decision has such far-reaching implications for defense strategies tactics that it requires us to reflect on how mental health issues should be regarded in the defense of a capital case.

  1. Mental Health Evaluation v. Social History

The first impulse of many practitioners upon being appointed at a capital case is to obtain a complete psychological evaluation of the defendant.  It is in the nature of capital cases that one or more of the following is usually true of the case: (1) the defendant’s account of the facts differs significantly from other credible accounts; (2) the defendant is so stressed or damaged that it is not possible to build rapport with him immediately after his arrest; or (3) the attorney is so repelled by the offense, the defendant, or both, that it is difficult to relate to the defendant or the case except at second hand.  There is almost always at least one mental health issue clearly identifiable in every capital case, be it addiction, brain injury, mental retardation or mental illness.  It is the rare capital case, which does not invite the practitioner to undertake a psychological evaluation early on.  Finally, much that we are taught, both in capital case seminars and in the case law, would seem to suggest that it is ineffective assistance of counsel not to obtain a psychological evaluation of a client in a capital case.  For all these reasons, a lawyer pondering her options in a new capital case will often conclude that what is so incomprehensible at the outset will be much clearer after a thorough psychological evaluation of the defendant.

Most lawyers know one or two social workers, psychologists or psychiatrists who can perform a competent evaluation.  If not, they are not difficult to find.  The attorney calls the mental health professional.  What ensues is important: (a) What does she tell this expert? (b) What does she ask? (Indeed, what can she ask?) And, (3) What kinds of answers can she expect?

A.                 As to the first question, answers will of course vary, but the information which is most likely to be available to a mental health professional in that early phase of a case will come from sources such as police reports.  What is extremely unlikely is that our hypothetical defense lawyer will know the things which will eventually provide the basis for the mitigation themes in her case, such as:  that the defendant ingested lead or some other toxin during his childhood, or that the defendant was sexually abused by a care giver, or that school authorities diagnosed a learning disability or brain damage in the defendant.  The number of possibly mitigating facts is virtually unlimited; but in the first stages of a case few if any of these facts are likely to be known to the attorney.

B.                 What will the defense lawyer ask a psychologist about her new client?  Most of us have been in this position know that there is not much she can ask except to request a “thorough” or “complete” evaluation.

C.                 Mental health professionals tell us that the answers they give us depend upon the questions we ask.  Referring again to the nature of capital cases, we know that most of our clients did not get into the difficult position they are in through some completely surprising chain of events.  More often, they are deeply trouble people with many reasons for the average citizen to want to stay far away from them.  It follows, without even knowing the specifics of our case, that a request for a “complete” psychological evaluation is likely to produce from an ethical mental health practitioner evaluation characterized by phrases such as “antisocial personality disorder,” “intermittent explosive disorder,” “grandiose personality disorder,” etc.  What is worse, our expert is likely to spell out the meaning of his findings.  For example, Mr. _________ has a grandiose view of himself.  He tends to be glib and charming, while at the same time experiencing an inability to empathize with others.  Such individuals often become con men, because they feel that ordinary work is beneath them….” Etc., etc.  (The foregoing is paraphrased from Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, section on antisocial personality disorder, p. 647.)

Lawyers differ as to how they will deal with a report such as that described as above.  What matters for present purposes is that such a report presents many problems for the lawyer.  For example, the social worker, psychologist or psychiatrist who has been retained may be particularly favored for some reason.  Perhaps his specialty is one that is hard to obtain elsewhere; perhaps he is a good witness who is particularly sensitive to mitigation issues.  Eliciting from such a professional a report with so much damaging information will likely make it inadvisable to call him a witness.  If our clients were not indigent this problem might be surmounted.  However, our resources are limited.  It may not be possible to obtain funding from the court for another social worker, psychologist or psychiatrist.  Moreover, once we have uncovered negative information about our client there are ethical limitations on what we do with that information.  In other words, negative information can reverberate throughout the course of a case, both as a drain on limited resources and as an unwanted problem to be solved.

The problem outlined above is akin to that faced by cross-examiners who ask a question to which they do not know the answer, and the solution is also similar: DON’T ASK THE QUESTION.  The heart of the problem of counter-productive mental health evaluations lies in the question presented to the evaluator.  The key to asking better questions of our experts is to recognize that there is a significant, legitimate difference between evaluating someone in preparation for litigation and evaluating the same person for diagnostic and therapeutic purposes.

II. A Litigation-Based Framework For Utilizing Mental Health Evidence

When a person presents himself for mental health treatment, it is usually advisable to obtain as much information about the person’s condition as possible before embarking on a course of care.  In preparation for litigation, however, we are governed by different considerations.  The defense function in a capital case is to obtain and present relevant, truthful information favorable to our client.  We are not in the business of creating a treatment plan for our client’s problems; rather, our purpose is to develop information that will mitigate guilt or punishment.  Furthermore, the day is long past when an array of “good” facts about a client, presented to a jury without coherent, carefully considered themes and purposes, will satisfy the evolving standards of competent representation in capital cases.

This is why a qualified mitigation specialist is a necessary “core” member of the defense team.  According to an affidavit from one such expert:

The role of the mitigation specialist in a capital murder case is to conduct a detailed biopsychosocial evaluation of the defendant’s life history in order to determine which issues or factors in that client’s life require additional expert examination.  The mitigation specialist is responsible for gathering whatever materials may be needed by such an expert to conduct a thorough examination.  The mitigation specialist is responsible for communicating with the attorneys so that they are aware of the result of the investigation, and so that a consistent theory of defense can be developed for the case.  The mitigation specialist is also responsible for working with the client and his or her family.  Lastly, the mitigation specialist aids in the development of a theory of presentation of the developmental life history information and may or may not be a mitigation witness during the sentencing phase.

Please note the reference to “additional expert examination.”  A qualified mitigation specialist performs several functions in a capital case, as described above.  Among the most valuable of these are the uncovering of facts in a client’s life that might be mitigating, recognizing the mitigating nature of those facts and knowing precisely how to support the mitigation themes which emerge.  This means that the mitigation specialist will guide the attorney in deciding when to consult other experts, what kinds of experts must be consulted and what questions to ask them.

Returning to the hypothetical client who suffers from antisocial personality disorder, typical psychological batteries of tests will disclose such a condition but will not tell us much about its mitigating origins.  For example, a recent Tennessee capital case involved a defendant who suffered from antisocial personality disorder.  This defendant’s social history disclosed that he had been adopted—not once but twice.  The mitigation specialist on the case helped the attorney to recognize the developmental significance of such failed “bonding.”  The mitigation theme which emerged—abandonment—focused on (a) the extent to which the client was damaged at an early age by forces beyond his control (indeed, by those who had a duty to protect him), (b) how this deprivation alone severely limited the client’s available options as he grew into adulthood, and (c) how it impaired the client’s ability to choose responsibly among his available options. This kind of theme is at the heart of mitigation.  The attorney still had to be prepared to deal with the negative label, antisocial personality disorder.  If her own experts did not use it the state’s experts likely would.  However, by starting with the social history the attorney remained focused on the task of advancing her client’s case.  When deciding what experts to consult, with input from her mitigation specialist and other members of the defense team, she did so with a specific litigation objective in mind.  In this example she may have decided that a developmental psychologist, rather than a garden-variety clinical psychologist, would be needed to assist the jury in understanding the significance of her client’s unusual early life and its impact on adult behavior.  The question presented to the psychologist in this case would not be “what can you tell me about my client on the basis of these police reports, your clinical interview and a standard psychological battery?”  The question would have been something like, "on the basis of the social history, described in the mitigation specialist’s preliminary report, as well as your clinical interview and testing, can you say to a reasonable degree of certainty how these early life experiences would affect my client’s development and behavior?”  Before even asking this question she would have a pretty good idea what the answer would be.  Note that an expert may be consulted on the basis of the mitigation specialist’s preliminary report.  It is not necessary that the social history be completed before other experts are consulted, only that the social history be well enough underway so that the consultation of the next expert serves a specific litigation objective.

III. An Incremental Approach to Developing Mental Health Evidence

Understanding the difference between litigation-based and therapeutic-based approaches to mental health issues will make an important difference in obtaining the resources necessary to present a defense.  Under Ake v. Oklahoma, 470 U.S. 68 (1985) and State v. Shepherd, 902 S.W. 2d 895 (Tenn. 1995), an indigent criminal defendant seeking funding to retain an expert must make a particularized showing of need for the desired resource.  Generally speaking, making such a showing means demonstrating to the trial court that (a) there is a legitimate issue which needs to be developed in support of the defense case and (b) the issue cannot be properly developed without expert assistance.

The above quote regarding the mitigation specialist’s function reveals that it is the mitigation specialist’s unique role in a capital case to point out the mitigating significance of various facts and to aid the attorney in deciding which experts to consult.  By contrast, some clinical psychologists will have a fair grasp of some or even all of the mitigating significance of the events of a client’s life, but it is not inherent in the profession of clinical psychology that its practitioners possess this knowledge.  Thus the mitigation specialist has an important role to play in the pleadings necessary to making a showing of particularized need.  No trial judge should have to authorize funds for an expert just because the attorney thinks the expert may be able to provide a useful service.  If that were the standard, lawyers could be expected to make an endless series of demands for every manner of expert assistance.  What the court has a right to expect is described in Strickland v. Washington, 466 U.S. 668 (1983) and Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), namely, that a competent attorney will make a reasonable decision of which avenues to pursue based on facts known to the attorney after reasonable investigation.

What this means to an attorney seeking resources necessary for preparation of a defense is that she must show the judge that her investigation has taken her to a point where a reasonable attorney would consult a specific expert for a specific purpose which is relevant to an issue in the case.  The best way to make this showing with respect to mental health (and most sentencing) issues is often in three parts:

(1) The attorney tells the judge, in a motion filed ex parte and on a sealed record, what it is she wants and why it is important to her case, specifically citing to Strickland, as well as cases supporting the relevance of the information sought;

(2) By way of exhibit, she attaches an affidavit from her mitigation expert.  The mitigation expert’s affidavit should show that facts have been developed which, based upon the mitigation expert’s training and experience, indicate the possible presence of specific mitigating evidence, but that a specified type of expert will be necessary to confirm the existence of this mitigation to a satisfactory degree of certainty; and

(3) She also attaches an affidavit from the specified expert setting forth (in addition to his qualifications, etc.) (a) What facts he has reviewed, (b) that these are the types of facts which experts in his field normally rely upon to justify the recommended course of inquiry, (c) his opinion that the recommended course of inquiry is necessary to determine the presence of the mitigating evidence, and (d) his fees for making the inquiry.

The first expert to be consulted in a capital case should therefore be the mitigation specialist.  How to make the above-described showing of need to obtain the assistance of this expert?  The answer is the same as for other experts, except that the second and their parts—the affidavits—are essentially combined.  The attorney’s motion should appraise the court of the kind of information that the sentencing phase of a capital case requires competent counsel to obtain. See (and cite) Lockett v. Ohio, 438 U.S. 586 (1975), Eddings v. Oklahoma, 455 U.S. 104 (1982), Penry v. Lynaugh, 492 U.S. 302 (1989), and other authorities, depending upon the specifics of the case.  The motion should point out that the kind of information necessary to the adequate, constitutionally-mandated presentation of a capital case cannot be obtained by an ordinary investigator but requires the specialized training and skill of an expert.  (The mitigation specialist’s affidavit should support this assertion, and the Capital Division can assist in obtaining additional exhibits in support of it where the court is reluctant.)

IV.              Thinking About Mental Health Evidence After State v. Reid

The order for pre-trial disclosure of the defendant’s intention to employ expert mental health evidence during sentencing, authorized by the Tennessee Supreme Court in State v. Reid, is a lengthy order and will not be reprinted here.  Attorneys handling capital cases are urged to study the Reid opinion and familiarize themselves with the provisions of the order as described there.

The chief provision of the Reid order which is of concern in planning the defense of a capital case is that it requires that the defendant be made available to the state’s expert for evaluation if the defendant intends to employ expert mental health evidence at sentencing.  (Rule 12.2 of the Tennessee Rules of Criminal Procedure already afforded comparable relief to the state in cases where the defendant relies upon a mental health defense during the guilt-innocence phase.)

There are several dangers inherent in allowing the state’s expert to evaluate the defendant in a capital case.  The salient dangers include:

In addition to Reid, cases discussing the legal issues implicated by court-ordered mental health examinations of the defendant include U.S. v. Beckford, 962 F. Supp. 748 (E.D. Va. 1997), State v. Huskey 964 S.W.2d 892 (Tenn. 1998), State v. Martin 950 S.W.2d 20(Tenn. 1997).  The Fight For Life has previously discussed the limitations on a defendant’s constitutional protections in cases where the defendant’s competency is to be determined (The Fight For Life, January 1998).  Our discussion here will be limited to considerations of damage control in light of Reid.

Reid affords the state what amounts to equitable relief founded entirely upon the state’s “right” to gather evidence for rebuttal.  For this reason defenders should insist on a narrowly drawn order which does not permit inquiry beyond that necessary to rebut the mental health issues upon which the defense expert will testify.

Because the state’s expert should be neutral, and not an advocate for one side or the other, the defense should at least ask the court to allow the defense to participate in choosing who will evaluate the defendant on behalf of the state.  See U.S. v. Haworth, 942 F.Supp. 1406 (D. N.M. 1996).  Even if denied input into the choice of the state’s expert, the defense should demand disclosure of the identity of the state’s expert, as well as appropriate background information, and should aggressively challenge the state’s use of biased or unqualified experts.

Defenders should guard against any attempt to require that the defendant be transported to a remote psychiatric facility for evaluation.  Even incompetent experts can appear to have been more “thorough” for having had access to the defendant 24 hours a day.  Such window dressing will put the defense expert at an unnecessary disadvantage.  Evaluations performed at psychiatric facilities should not be necessary to rebut the defendant’s experts, since the defendant’s expert did not employ a residential evaluation.  The Sixth Circuit has held that the trial court’s power to commit a defendant for evaluation (as opposed to ordering an examination) does not extend beyond the specific instances of competency and sanity evaluations. U.S. v. Davis, 93 F.3d 1286 (6th Cir. 1996).

As indicated above, possible video or audio taping of the state’s evaluation poses serious concerns.  In addition to the situation described above, in which the defendant might not wish to testify, there is a concern raised when the state’s evaluation is recorded and the defense evaluation is not.  This may create the impression that the state’s evaluation is more credible or thorough than that of the defense.  On the other hand, video or audio taping can be helpful in keeping the state’s evaluator honest.  There is no mandatory authority either way (Huskey and Martin extol the benefits of recording, but neither case required or employed it.)  A defender is left to weigh the Fifth, Sixth, Eighth, and Fourteenth Amendment consideration in her case, and must argue her position based upon the specific facts of the case.

IV. Conclusion

Mental health evidence will probably always remain at the heart of capital case defense.  In order for the attorney to develop, evaluate and present the kind of mental health and other mitigation evidence to which defendants are entitled, a qualified mitigation specialist is a necessary first member of the defense team.

Attorneys defending capital cases should proceed by logical increments in obtaining resources necessary to presenting a defense.  The “reasonable strategic decision based upon information available to the attorney after reasonable investigation,” as described in Strickland v. Washington, should underpin the attorney’s requests for resources.  Information and expertise supplied by the mitigation specialist will provide the foundation for most such requests.

Many assumptions, strategies and tactics concerning the use of expert mental health evidence in capital cases must be re-thought in light of the state’s right to evaluate defendants who intend to employ expert mental health evidence at sentencing.  Because prosecutors have become increasingly aware of the need to rebut defense sentencing evidence, defenders must be prepared to: