“We hear all about the victims,” Jennifer Wynn told me recently, “but we never hear about the defendant’s story.”
Wynn, cheerful and salty, is a mitigation specialist. She is engaged by defense attorneys, mostly in capital cases, to investigate and compile the life story of the defendant. The material Wynn gathers, often heartbreaking and brutal, is used to convince the jury to deliver a sentence other than death. (In non-capital cases the same person is called a sentencing advocate, and they similarly argue for a less-severe sentence.)
More often than not, mitigation specialists are paid for by the criminal court. Defendants in death penalty cases can rarely afford their own attorneys, much less a mitigation specialist.
“The most important job, whether it’s a capital case or non-capital case, is to tell the lived experience of the defendant,” Wynn said. That experience is harrowing. Defendants, particularly in capital cases, oftentimes have suffered physical and emotional victimization themselves. According to a study of life histories of 43 men on death row, “Severe and multiple forms of abuse were endemic” and “typically multigenerational.”
Mark Pickett, an attorney who has worked on dozens of capital cases, told me, “I’m sure there are a handful of outliers, but I can’t think of a single case off the top of my head where the client didn’t suffer some form of serious abuse in childhood. The cycle of abuse in these cases typically goes back several generations and is often combined with extreme poverty, alcohol and drug addiction, neglect, and untreated serious mental illness.”
It falls to the jury to decide if the mitigators (elements or factors that lessen culpability which a jury may weigh in deciding whether or not to impose a death sentence) outweigh the aggravators (statutorily-defined elements that the state must prove exist beyond a reasonable doubt, in order to certify a case death penalty-eligible). All it takes is one juror to send the convicted to life in prison without parole instead of the execution chamber.
Wynn’s entrance into the field, she says, was “a fluke.” While she earned a Ph.D. in criminal justice, she was an adjunct at the John Jay College of Criminal Justice and worked full-time on a Rikers Island re-entry program called Fresh Start. She caught the attention of Court Consultation Services, a small but highly respected organization founded by Louise Luck, who has been involved in hundreds of death penalty cases — including the Craigslist murderess — and has done mitigation work for more than 30 years. Two years later, Wynn went out on her own. She has now done mitigation work on 30 murder cases, 25 of which were death penalty-eligible, and won them all.
Wynn talked recently to MEL about a few cases. Names of her clients and their family members have been changed, to allow her to talk in depth about them.
A police officer and another man were shot and killed. Jack had just been paroled on another offense, and had an ankle bracelet. Jack and a friend were accused.
One challenge here was that Jack, like a lot of my clients, is a man of very few words. Their poverty of speech is profound. It’s not because he’s trying to conceal anything. He simply has a low IQ. He’s borderline retarded, like many people sitting on death row.
He told me for two years he wasn’t the shooter; his friend was. He’d taken the rap for him. Code of the street. His first attorney did nothing. By the time I met him, he’d been in jail for a year and had seen his lawyer once.
It can be difficult to tell a client, Tell me about your awful upbringing so we can hopefully get you life in prison, when the person’s like, I didn’t fucking do this. A person claiming innocence is understandably not interested in hearing about life in prison. I have to overcome that challenge.
Anyway, Jack’s friend shot the cop. Jack went home that night to his mom and confessed. The shooting was all over the news. Jack says, Mom, I was part of this. I know what happened. His mother is horrified. She, in turn, tells a friend, who calls 911. Within 3 or 4 hours Jack is arrested. The cops say to Jack’s mother, We understand from your friend that your son did this. His mom tries to slit her wrists. The cops show Jack her bandages. Jack still refuses to tell them what they want to hear. He’s like, Fuck you. I didn’t do this. He puts his head down and goes to sleep in the interrogation room. In that highly emotional situation, they extract a confession out of Jack. You don’t rat on your best friend.
Jack was so emotionally numb from all the trauma he’d experienced in his life, he could barely articulate his own suffering. I’d say to him, Jack, how did it feel seeing a cop shoot your dad? He didn’t know. He was such a tough guy, as are a lot of my clients. They’ll be like, So what if my mom beat me with a stick and smoked crack while she was pregnant? It’s very easy to then take their word. Big deal, you know? But of course it is. It takes a long time for them to really be able to relax and open up, to trust me enough to start expressing emotion and to talk about their lives.
The report took about two years and at least a couple hundred hours of work. I tracked down witnesses. I took lots of trips up to see the family, and hung out in their house. Uber [drivers] would say, Oh, we don’t want to drop you off here. This is a really bad neighborhood. The lawyer was good. He got the courts to appoint an investigator. I had medical records release forms signed from Jack. He’d been shot at a whole bunch of times, and every hospital he went to was different. We found programs he’d been in, counselors he had.
I spent 50 hours interviewing Jack. In any jail or prison, there should be private, confidential visiting rooms where lawyers and agents of lawyers, like myself, can have a private, confidential conversation with a client. In the county jail there is one room that has three tables in it. If there are other attorneys and clients present, I tell the guard, This is not happening. There’s so much sensitive information. It’s a violation of standards; I know the standards because I used to be a jail monitor. I’ll make them find me a private room, and they usually do.
Jack had 24 absences in kindergarten, which I figured out from the school records. In most cases, when our clients are in their 20s or 30s, we get their records from the school district. But in Jack’s case, his school had shut down, so we found them in a storage facility.
Most of the time, family members aren’t reluctant to talk to me. But sometimes you find they’re very creeped out and ashamed by what happened, and it’s painful for them to discuss it. But that’s the mitigation. Look, I explain, If you tell me he had a great upbringing, the jury is going to think he’s a sociopath, and have no pity for him. What’s bad about life is good in mitigation. You get stories that other family members — and sometimes even the client himself — don’t know. The week before Jack’s trial, his cousin, who I’d been speaking with for a while, said, I have to tell you something I don’t think Jack even knows: His dad tried to rape me. She said, Jack saved me. Jack probably doesn’t even remember, because he was only six years old.
When I met Jack, he wanted us to argue for something other than first-degree murder. He wanted it known that he didn’t do this. He had me convinced. So it went to trial. The jury heard the 911 call over and over. But his incredible lawyer was able to convince the jury, not that he was innocent — that would’ve been impossible — but that it wasn’t first-degree murder, which is planned, knowing, willing, intentional. And she got the jury to return a verdict of second-degree murder on the cop. It was extraordinary. We didn’t even go into penalty phase, thank God. Then the judge went to the family of David Martin, the other victim, and asked if they wanted the court to pursue first-degree murder. They said, No. We don’t believe in the death penalty.
That’s how it ended. I visited Jack in the holding cell before he shipped out to state prison. I told him I’d put two years into this case, and I really believed he hadn’t killed anyone and just took the rap. What really happened? He told me, Look, I killed David, but I did not kill that cop.
Do I always ask them if they did it? No, but it has to come up. If they want to talk about it, we address it. That’s the elephant in the room.
I love Luis. He was my first full case. So articulate, so forthcoming, so remorseful. Luis admitted to brutally bludgeoning his girlfriend to death with a hammer.
When I first met Luis, he wanted to die. He’d done time for a previous murder. It was third-degree — he’d shot and killed a rival drug dealer. Anyway, while he was serving 20 years on that, he met Marta, with whom he fell madly in love during the last couple of years of his sentence. When he got out they were seeing each other. She lived in Delaware with her parents. He quickly got addicted to heroin.
There was a lot of drama in the relationship. Marta was lovely and sweet, and vivacious. She’d flirt a lot in front of him, and he would get very jealous. They would have fights. The day he killed her he’d agreed to go into a methadone treatment program. He was given a toxic dosage. He told me he was hallucinating.
He came home with Marta. They went to the bedroom. He was hallucinating. She’d gone to take a shower. Then she came out the bathroom, and said she wanted to break up with him. This was a very codependent relationship between two fucked-up people. He said he saw a devil, and she was the devil. He grabbed a hammer from his nightstand table — he was in a vocational training program — and bashed her head in.
This happened in his father’s house. I didn’t want my dad to walk in and see her bloodied body and have a heart attack and die, he recalled, so I put the mattress on top of her. Then he went out and bought a bunch of heroin, to kill himself.
Three hours later, he wakes up, shocked to be alive. He gets in his car, buys more heroin, and goes to the house of Ivonne, who was a volunteer teacher he met in prison. She was fond of Luis, because Luis is very intellectual and always reading. He got a BA and a theology degree in prison. He wrote a book. Ivonne really loved him. She told him, You will always have a bedroom in my house.
So it’s three in the morning at Ivonne’s house, and he’s just completely whacked out. He’s got all this methadone in him, and tons of heroin, and is trying to kill himself. He got a knife out of her drawer in the kitchen, goes up to his bedroom. He slits his wrists, and does more heroin just to make sure he’s going to die. Well, Ivonne woke up, saw blood on the floor. She calls the ambulance. According to transcripts from the EMT people, the first thing he said when he was lucid was, Don’t worry about me. Don’t take me to the hospital.
He admitted, right off the bat, that he killed Marta. He didn’t know why. Luis had a piece-of-shit lawyer; I helped him fire the lawyer, but then he was replaced by another piece-of-shit lawyer who never liked Luis. Sometimes you get these defense attorneys and it’s very clear they hate their clients.
My first visits with Luis were all about getting him to help us help him. He just wanted to die. He’d cry and say, Don’t fight for me. I just want to be with my Marta. I would just listen and just say, Okay, I hear you. Sometimes I had to play games. I’d say, I took a train all the way down here, can you just entertain me? I don’t want this to be for naught. I’d listen very sympathetically. I’d say, Would you mind if I came back next week, at least so I could say my job is done?
It took two or three meetings to get him on board. Then there was tons of work — obtaining
records from the methadone place, for example. They were playing games with us. Normally I’d get a release of information form signed by the client and fax that to whatever kind of agency, and they’ll give me the records. This clinic — some shitty fly-by-night place; who knows if it’s even still there — required a lot of wrangling, and intervention by the attorney, in order to get the dosage records. The fact that he was given such a high amount of methadone helped us bolster our case to the DA, which then contributed to the offer of a plea to life in prison without parole.
Another great piece of mitigation was an FBI investigator on Luis’s previous murder who had really grown fond of him. He talked to me on the phone about Luis, and allowed us to quote him in our reports. He said that Luis was basically a good guy and had not been given resources, and hoped that he would somehow learn to forgive himself. It was pretty amazing. They used to send each other Christmas cards.
When people share with you their deepest, darkest secrets — the worst things they’ve done — they need validation. These are people who, for the most part, have been told their whole lives, You’re a piece of shit. They’re bullied, they’re picked on, they’re shot at. Then they act out, and society says, See, you are a monster. Then, people like me come in and say, No, you’re not a monster, and you still do deserve to be part of the human race. The system is fucked up, and I tell them that. It’s the first time they’ve ever heard that.
A capital litigator who consulted on the case said, Luis is dragging this out, because he doesn’t want to let you and the other lawyers go. He’s never had someone’s attention and support. Sometimes when these guys are offered a plea they won’t take it, because they don’t want to say goodbye to their defense team.
Luis was offered a plea of guilty to first-degree murder. He refused. He said, I’m not going to agree to anything until I talk to Jennifer. I was his confidant, his friend. The DA said, If he doesn’t accept this today, we’re taking it off the table. So I got down there, I sat across from him, a glass between us. He was always cuffed, on account of the prior murder. Luis said, I just want to thank you for believing me, and making me feel like I deserve to live. He says, I can’t lie to you, I can’t accept this plea unless you know something. I was like, What? He said, I knew I was killing her. I was not hallucinating. He said, I will never be set free, I will never be able to truly forgive myself, and I will not be forgiven by God unless somebody knows the truth. He wasn’t in his right mind because of the methadone, he said, but I never saw that demon.
I’m getting emotional talking about this. I really invested a lot in this whole methadone defense, and I really believed it. Oh my god, I can’t believe I’m crying over this.
There was something wrong with Michael Smith. He confessed to sexually assaulting his 2-year-old daughter and then taking her into the woods and leaving her to die in the snow.
When I first met Michael, at the county jail, we were basically in a storage closet. So I’m sitting across from him. He may have been cuffed. Once the guards get to know me, and know I’m fine with the client, they take off the cuffs. It was unnerving, when Michael sat down, to notice the tattoo. He’s a light-skinned black guy, so tattoos really show up on him. He had the name of his baby daughter, Mia, across the front of his neck in huge block letters. Like three inches high. And it’s so creepy, because I’ve read the discovery, and read his confession, and I’m thinking I’m sitting down with a monster.
His lawyers are like, There’s something wrong with him, but we don’t really know what. Well, you know? He had very halting speech, and he’d say very strange things from out of nowhere. It became pretty clear to me, within the first or second interview, that he was low IQ, borderline retarded. Then it occurred to me, maybe after four or five interviews, there was a pervasive developmental disability. He had neurological impairment, and was probably autistic.
Why? Well, I asked him to tell me about his tattoo. When did you get it, and why? He tells me about how he awakens for work each morning. He was a janitor, and had an hourlong commute. He said, It’s so cold here in the winter. Sometimes we hadn’t paid the electric bill, and there was no heat. It’s always hard to get out of bed in the morning. I thought, what if I got a tattoo of my daughter’s name on my neck? So, when I’m in the bathroom and I’m putting cold water on my face, and wondering why I’m doing this, and thinking I should just get back into bed, all I have to do is look in the mirror for a reminder. I’m working for Mia.
I’m like, Wow, really? You have to remind yourself? I knew right there and then, he had gotten that tattoo because he loved his daughter. He’d gotten that tattoo three months before this happened. We got in an autism specialist, who tested him and said he’s absolutely autistic. What troubles me about this case to this day, people like Michael — who testified that he didn’t do it — often make a false confession. He’s suggestible. The cops lied to him, which they are legally allowed to do. They told him, If you plead guilty to leaving Mia in the snow and killing her, you will be home by the time your son — who was 5 at the time — graduates from high school. He believed them. And once you falsely confess to the cops, the investigation stops.
I think it’s absolutely possible somebody else did it. There were other people in the house where he lived, like his mother’s boyfriend, who had violent tendencies and was a crack user. The baby’s mother certainly could have done it, and Michael would take the rap for her.
His mother, I found, was also autistic and borderline retarded. I went to their house and sat down with the mom. Roaches crawled up the wall, and she just stared blankly at the TV. I was like Maryanne, are you okay? She’s like, Yeah. One of the weirdest people I ever met.
He gave me all his journals from the whole year he was in jail before this went to trial. He’s a pretty good writer for somebody with a 76 IQ. He speculates about who could’ve killed Mia. I mean, he’s been shouting innocence forever, and when a person has shouted innocence forever, somebody’s got to listen, you know?
It was hard, at first, to get him to talk about his life. Not because he didn’t want to, but he simply didn’t have the vocabulary. But I found that he’d been growing up with roaches, rats, mice, garbage-strewn living room floor. Michael sleeping on a mattress or a sofa pillow, as a toddler. A cousin told me about coming to his house to get him and having to trip over bags of garbage and empty beer cans.
Before I testified, his brother said to me, Please do your best, and don’t let them kill my brother. You go into these things with the weight of the world on your shoulders, not knowing how it’s going to turn out.
The prosecutor was a real arrogant pitbull who tried to discredit me before I even got on the stand. In his opening statement during the penalty phase, he told the jury, The defense is going to have an “expert” up here who’s going to try to tell you your job is hard. It’s not. Then he said something really stupid. He says, Our state has had the death penalty forever, and jurors don’t have a problem with it being administered.
When I got on the stand, I looked at the jury, I smiled. I know how to play the game. I said, I just want to correct an inaccuracy from the prosecutor. In fact, in America it was abolished for four years. In 2002, the Supreme Court said that people who are mentally retarded cannot be exposed to the death penalty. I told the jury, it was obvious that Michael was profoundly impaired. It was quite challenging, actually, because the prosecutor went after me. But I like arguing, and I like defending my clients.
The key mitigator was his intellectual disability. The problem is, even with Atkins v. Virginia, the Supreme Court left it up to the states to determine what constitutes mental retardation. Every state, basically, uses two prongs: the IQ test, and what’s called adaptive living skills.
But when Michael testified, the jury could see how impaired he was. At times, on the stand, he’d kind of look out the window, distracted by a butterfly. He tried to make himself look like Cornel West. He got glasses, he grew his hair out in an Afro, all because one of the guards told him he looked like Cornel West. He said to me, I thought if I made myself look really smart, like Cornel West, maybe they’ll believe me.