The Impossible Dilemma Facing Death Row Investigators
Reading Time: 7 minutesMy Job Was to Search for Evidence to Stop Executions. I Was Set Up to Fail., My job was to find evidence of trauma—but I couldn’t treat it., What it’s like to represent people with mental illness on death row.
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The first time I visited death row as an investigative intern, the man whose case I was working sat behind a plastic divider and ran his fingers through his graying hair. He picked up the phone at the same time as his attorney, sitting beside me, lifted the phone on our side of the divider. ‘I recognize you,’ he said to her, with no hello. ‘But you might be somebody else.’
This was the first of many instances where I, a former capital defense investigator, saw symptoms of paranoia, depression, suicidality, mania, and delusion affect my clients’ ability to participate in their own defense. As an investigator in Tennessee’s state appellate system, I met with clients on death row, combed through thousands of pages of records, and interviewed everyone I could—from the police officers who collected crime scene evidence to the third grade teacher who noticed the first signs of a serious intellectual disability. My goal was straightforward: to gather evidence to save someone from execution or to free an innocent person.
It’s a demanding, complicated job made all the more difficult by how common it is for people on death row to experience mental illness, and how rare it is for them to receive any kind of effective treatment. Assessing and responding to mental health concerns is critical in ensuring that folks get the meaningful, thorough defense they are constitutionally entitled to. In fact, understanding mental illness is often an essential part of legally demonstrating why someone should not be executed. And ignoring the mental health needs of people on death row also violates the rights, dignity, and humanity we should strive for in even the most severe criminal cases.
But for criminal defense teams like the ones I worked on, the lack of mental health resources on death row leads to a particular dilemma: Sometimes what is best for a client’s case outcome is not best for their immediate well-being. Defense teams do their best to support their clients, but a legal professional is not a mental health professional. And when the two are at odds—say, a client’s history of schizophrenia diagnoses will provide important context to a judge but make him vulnerable to abuse in prison—teams must ethically put saving a client’s life above all else.
Tanya Greene, who spent decades as a capital defense attorney, told me she’s spoken to countless mental health professionals who are shocked to learn that the goal of understanding a client’s mental illness is to lessen punishment, not to treat them. ‘A client’s mental health situation impacts every level and every stage of their defense,’ Greene said.
For example, an attorney might decide whether to pursue a competency claim: If a client is found mentally incompetent to stand trial, they may actually get resources, but that could mean indefinite incarceration in a state institution. If they are declared competent and go to trial, the defense team might be able to win a parole-eligible sentence. But the client’s mental health might fall apart even further while in prison, or they might lose the case entirely.
This is a constant problem for death penalty teams. Data shows that at least 43 percent of the 2,414 people on death row in the United States suffer from mental illness, but the attorneys I spoke with are confident the real number is much higher and underreported due to stigma, fear, and the deprivation of care that often comes with poverty, as well as poor data in the prison system.
This is not to say that mental illness leads to violence. Folks with mental illness are more likely to be victims than perpetrators of violent crime, and mental illness itself is often criminalized. But for those who are convicted of death-eligible crimes and have mental illness, the lack of care within the system exacerbates existing conditions and mirrors the countless systems that failed them long before their sentences.
Mitigation evidence is one of the things that distinguishes death-penalty cases from other criminal trials. It is any piece of information that reduces a client’s culpability and inspires jurors to inflict a sentence less harsh than death. ‘The whole aim of mitigation is the challenge of convincing people to see past the one-dimensional painting that the prosecution is going to paint,’ Athena Kheibari, a former mitigation specialist and the coordinator of the Holistic Defense Program at Wayne State University, told me. But to paint that picture, which includes everything from mental illness and trauma to a client saving a correctional officer’s life during a jail riot, defense teams must conduct a thorough and difficult investigation. I spent the majority of my time as an investigator working on mitigation, which meant I knocked on the doors of mothers, teachers, and neighbors. I sat in an aunt’s living room and heard stories of generational psychotic episodes. I reviewed thousands of pages of medical and educational records, piecing together a story of my client that had never been told.
Ideally, every capital defense team would have a team member who specializes in mitigation—someone who can screen for mental illness and conduct trauma-informed interviews, given that the sensitive nature of mitigation evidence can trigger and destabilize clients. American Bar Association guidelines state that each team should include, at minimum, one mitigation specialist, one investigator, and two attorneys. But funding for this standard is consistent only at the federal level. Each state varies in how much funding, if any, is given to state appellate offices, and trial team resources are often dependent on individual counties.
For teams that do have the resources and skills to conduct a thorough mitigation investigation, the next step is telling that story to jurors or a judge. If funds permit, they hire expert witnesses—like neuropsychologists and psychiatrists—to put the mitigation evidence in context. What does all that personal, often painful information about a client and their family say about who they are, their culpability, and how they should be punished?
Patti van Eys is a clinical psychologist who works as a consultant, a specific type of expert witness who might not testify but who aids the defense team in understanding the effect abusive childhoods, mental illness, and trauma have on their clients. As part of her work, which also includes sharing detailed reports with judges and decision-makers, she evaluates clients in prison. ‘I’m going in with a very interesting kind of double hat, where I am an evaluator, but I’m a therapeutic evaluator. I’m almost like a therapist,’ she told me.
A consultant like van Eys is often the closest that people on death row get to mental health treatment. But it’s rare that teams have the funding for someone like van Eys to meet with a client more than once or twice, if at all, despite case law that entitles them to it. Van Eys told me about working on a case with a client who immediately shut down when she asked about his mother. He couldn’t list even a few adjectives to describe her. Van Eys knew immediately that there were major issues related to his mother, but she didn’t have the time she has in a typical therapeutic setting.
‘My job is absolutely to go in and help save this guy’s life,’ she said. ‘The therapeutic goal and the forensic goal bump up there because what do I do now?’ In situations like this, van Eys tries to find a middle ground and come back for a second visit, to slow the pacing of these conversations. ‘I got deeper information the second time, and I still didn’t get all the way there,’ she said. ‘But if he had ongoing, trauma-based therapy in the safety of a confidential relationship, he might.’
When I worked as an investigator, I was often the team member that clients bonded with most—it was with me that they spoke about not only their cases, but also their lives. This raised difficult questions about agency and ethics. On one hand, I had an ethical duty to do everything I could to stop their execution. That meant that when their symptoms caused them to break down before a mental health evaluation, or their trauma caused them to threaten giving up their appeals, I had a certain duty to press on. But ultimately I couldn’t know what it was like to face death, navigate mental illness and trauma while incarcerated, or decide what ‘quality of life’ meant when the best-case scenario was usually life in prison.
‘This is my life, not yours,’ a client once told me. He feared what a psychologist would find in an evaluation, and he didn’t want me to strain his relationship with his mother by asking about family secrets. It was one of many moments when what I knew was best as an investigator conflicted with what I would have thought best if I were his therapist or friend.
When I asked Kheibari about this tension, she said a holistic defense model can offer a framework to make capital defense more client-centered and interdisciplinary. Holistic defense involves more collaboration within defense teams, rather than a strict siloing of roles. ‘It also means giving [clients] much more voice in decisions,’ Kheibari said. An attorney should, for example, consult with a client before sharing in a courtroom sensitive information about a traumatic event, she said.
Kheibari trains public defense offices on holistic principles and has seen an increase in their use. In many ways, holistic defense builds upon the ABA standards of care—but given that many defense teams are fighting for even those basics, the resources and time it takes to incorporate holistic principles are simply not there. Still, there are small ways to create more safety in the process. ‘I always tell the clients, ‘You’ve had a lot taken away in your life,’ ‘ van Eys told me. ‘ ‘You have very limited freedoms around anything. But one of the things you do have is your freedom to choose what you say to me.’ ‘
Ultimately, people on death row desperately need trauma-informed treatment from trained mental health professionals who are not part of the defense team. This would enable defense-team members to continue sensitive and competent casework, while taking away some of the pressure to straddle the difficult line between legal representative and mental health advocate. It would also give clients an opportunity for therapeutic safety that isn’t as deeply linked to the high stakes of their legal cases.
Given where we are now, the idea of prisons hiring qualified therapists on death row is somewhat of a distant dream. But Kheibari’s research shows that the presence of jail-based clinicians improves suicide outcomes, and other research has shown that in-prison mental health services reduce recidivism. (Even though recidivism does not directly relate to life-without-parole and death sentences, it’s an important measure in other cases and is likely related to other positive outcomes inside prison.) Although states may be reluctant to better fund criminal defense, perhaps building out in-prison mental health resources would appeal to the desire to improve safety and reduce costs over time.
Recognizing all the constraints I faced as an investigator in this willfully cruel system was devastating for me. I saw so clearly how much my clients needed mental health treatment—and had needed it for years before ever being incarcerated. I had nowhere to refer them. For any hope of a just and humane system, that needs to change.
Reference: https://slate.com/technology/2023/05/death-row-mental-illness-trauma.html
Ref: slate
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