Mitigation Investigations in Capital Cases:
Prevention Strategies an Mitigation Training

Training manual published by:
The Center for Death Penalty Litigation, Inc..200 Meredith Drive, Suite 20,
Durham, North Carolina 27713-2287
(919) 544-4650

Inherent in any capital case are a number of variables: the political climate ("we must be tough on crime"), statutory issues (whether mental retardation is considered mitigating, etc.), the judge (his or her knowledge of capital case law, etc.), the prosecutor (issues of over-prosecution, capital case law, etc.), the media (subjectivity, to political influence, investigative reporting skills, etc.), lay witnesses (whether they can be found, how impaired they are, etc.), experts (skills matched to the needs of the case, availability, etc.), the client, and his family. Many of these are outside the influence of the defense team. All come into play at one time or another, some more frequently than others. No single variable has greater potential for determining the outcome of the case than the client. The client's perspective, level of understanding and degree of cooperation can translate into a sentence of life in prison or a certain death penalty. And, while issues to do -with the client are among the most volatile variables, they are typically those most responsive to actions of the defense team. Hence, it is necessary to pay special attention to the unique attributes of capital defendants and the factors that shape the quality of the relationship between the client and members of the defense team. This entails considering how the professional relationship in a capital case differs from other client-professional relationships.

The unique relationship between defense teams and capital defendants
In most client-professional relationships the client approaches the professional with a specific need or aim, and the professional makes a decision as to whether or not she has the skills, experience and resources necessary to assist the client. The professional brings to the task relevant expertise. The client provides the context within which the problem is defined and is involved at
nearly every juncture of the process. This is not true of the relationship between capital defendants and defense teams, where the client generally has little say in who represents him and remains essentially powerless throughout the case. This disparity, combined with the potentially lethal sentence, is the source of many of the barriers defense teams routinely confront in death
penalty work.

Knowing the client

Equally important, the client brings with him unique experiences and limitations that accentuate his powerlessness and increase his anxiety. The intense pressure of the charges against him tax his limited coping mechanisms and cause his mental and emo nal problems to become more acute. All other things being equal, establishing a relationship between the client and the defense team would be difficult. Add to this the client's inherent limitations and the effects of extreme stress, and the task becomes formidable. The kinds of problems that emerge between clients and defense teams can be better understood in the context of who the client is and how he sees the world. The following are experiences common to most clients:

Poverty. Defense teams sometimes fail to adequately explore the specific implications of longstanding privation. With rare exception, the client is indigent, having lived his entire life in inescapable poverty. For the child raised in a safe, supportive environment that is otherwise rich and challenging, the effects of poverty are generally inconsequential and transitory, and the child develops skills to better her circumstances later in life. However, in the absence of compensatory factors, severe poverty is devastating and irrevocable, depriving children of basic necessities, including prenatal care and proper,medical assessment and treatment. Often these children are born with medical conditions that need ongoing attention and, left untreated, cause progressive problems as the child grows.

The effects of poverty don't stop there. They envelop the child like an endless pall. Lack of resources results in inadequate housing and overcrowding. It is not unusual for clients to recount hideous stories of having had to combat rats and insects iii their homes, or even to have been bitten by rats or have seen other children bitten by rats. Overcrowding means the child has no consistent place of his own or for his belongings and is deprived of privacy and a sense of personal boundaries. This increases exponentially the risk of sexual abuse (older children "creeping" the younger ones in their sleep). Constant noise and overstimulation prevent the children from assimilating and accommodating new information, which in turn causes learning problems.

Unabated poverty usually manifests in numerous translocations, often the result of evictions. Almost all clients can recall running from the "rent lady" in the night, and having to make do without electricity. As a result, educational records reflect frequent changes in schools, poor school attendance and diminished performance. Many clients missed school because they had no clean clothes (some smelled of urine, the result of small children sleeping next to them on pallets having wet the bed at night) or did not have lunch money. When they did attend, they were often hungry, light-headed and unable to concentrate on what the teacher was saying.

Poverty is pervasive, creating a filter that continually shapes the child's world view. It restricts one's focus to physical needs, such as food, shelter, and safety, and prevents the exploration, trial and error learning, and use of imagination that are essential to healthy
development. The child raised in extreme poverty has a limited sense of the future and few aspirations beyond the hope for greater material wealth. He does not learn that he can affect his environment or increase his own efficacy. Accordingly, he sees himself as eternally at the, mercy of forces beyond his control, unable to alter his destiny in any way. Such hopelessness taints the client-professional relationship and gives rise to one of the greatest barriers to effectiveness.

Cognitive Deficits. Several factors account.for the low I.Q.s and myriad learning problems seen in capital defendants. Most variables are attributable to organic or environmental causes or a combination of the two. Many organic problems begin before birth. Clients are often born to poorly nourished, teen mothers or to mothers who have had so many children in such quick succession that they are metabolically depleted, chronically exhausted and suffer compromised immune systems. Many mothers have alcohol and substance abuse problems, the more subtle effects of which frequently go undetected. For example, fetal alcohol effect (as opposed to fetal alcohol syndrome) can be mistaken for other problems or missed altogether, especially when the parents steadfastly deny alcohol use.

Prenatal injuries and birth trauma play a role in some brain deficits. It is not unusual for a client's mother to have made several failed efforts to abort the child (often accompanied by a suicide attempt), or for her to have sustained abdominal trauma during beatings from her parent or guardian, her boyfriend or the child's father. Trauma during labor and delivery, including prematurity, induced labor, anoxia, Rh incompatibility, breech presentation, and other life threatening circumstances account for another proportion of organic problems, and are usually documented in birth records. The social histories of clients reflect a high incident among capital defendants of immune-related illnesses. A history of high fevers, respiratory infections, digestive problems and dehydration are not unusual. Similarly; these clients sustain a high number of injuries (often a result of neglect), including broken bones, ingestion of toxins and poisons, cuts, abrasions, and falls, any of which can cause irreparable brain damage.

A generational pattern of mental retardation, low I.Q. and learning problems is common among clients' families. The source can sometimes be traced to incest or marriage among close relatives. Other times a genetic defect is the cause.

The child's environment is as likely to account for cognitive deficits, as is organic dysfunction. Overwhelmed, depressed caretakers who see themselves as hopeless and helpless are unable to provide the attention and nurturing necessary for healthy cognitive development. Parents overcome by their own insoluble problems tend to withdraw and isolate themselves, shutting out what they cannot face (Garbarino, Dubrow, Kostelny, Pardo, 1992). Lack of stimulation and social interaction interferes with the child's normal learning processes. Without feedback and encouragement from the parent, the child fails to develop curiosity or a desire to explore his environment. This results in an inability to master fundamental mental and social tasks that form the framework for subsequent learning.

Conversely, a chaotic, unpredictable and unstable environment causes persistent anxiety and an inability to attend to information and organize it meaningfully. Overcrowding, inconsistency, and overstimulation overwhelm the child's limited framework for understanding and responding to her experiences. Sameroff (1987) found an inverse relationship between risk factors and I.Q. scores. Children exposed to multiple risk factors were more than 24 times as likely to have I.Q.s below 85 than children raised in low-risk homes ( the risk factors included parental mental health, level of education, occupation, ethnic status and level of anxiety; family, size, and degree of extended family support.).

Children who are both organically and environmentally predisposed to cognitive limitations absent comprehensive intervention and remediation are hobbled in all spheres of performance. They, struggle valiantly to compensate, "catch up", and "act normal", but their marginal abilities and social impoverishment leave them perpetually confused, outside the mainstream of social understanding, and plagued by feelings of alienation and unworthiness.

Substance abuse. The combined factors of self medication and corrupting influences result in a longstanding history of substance addiction in most clients. Abuse, neglect and untreated medical problems lead to self medication. Corrupting influences make various drugs readily available and remove social prohibitions against children using alcohol and illegal drugs. Clients typically begin drinking between the age of eight and thirteen, swallowing the dregs of their parents' glasses and bottles. The progression of addictions appear to vary according to age and location. Older clients who grew up in rural areas describe drinking moonshine -- buck and home brew -- and then moving on to pills and harder drugs. In most instances, their parents and/or other relatives made or sold the moonshine and were also alcoholics. There is usually a family history of arrests for "drunk and disorderly," "public intoxication" and simple assaults associated with being drunk and fighting. Generational medical histories include liver and pancreas disorders, stomach problems, and heart disease.

Younger inner-city clients indicate that their substance abuse began with drinking and smoking marijuana in the mornings on the way to school. "Shake-em Ups" ( a concoction made of juice and liquor, such as gin and orange juice) and Wild Irish Rose (cheap wine) are among the more prevalent drinks. Marijuana is used throughout the day; there is usually an area near the school or housing projects -- typically a large tree --where they stand and smoke. In the afternoon they sip on quart-size bottles of Colt 45 while smoking marijuana. By their early teens, clients begin using cocaine, first snorting it, then lacing (powder cocaine sprinkled on marijuana cigarettes), geeking (rock cocaine sprinkled on marijuana), and finally becoming addicted to crack (rock cocaine). They have usually been introduced to drugs by older relatives -- cousins or aunts and uncles-- who are themselves addicted. In most instances a number of male relatives have served time for drug-related offenses ranging from sale and distribution of cocaine to murder. Many female relatives have a history of arrests for shoplifting, loitering, prostitution and fighting. Some female relatives are "crack whores," who essentially live on the street, have a number of children who are in the custody of HRS (usually because these women have left the infants in the hospital following delivery and failed to return for them and many of the children test positive for cocaine) and ultimately contract any number of sexually transmitted diseases, including hepatitis B, syphilis, gonorrhea, herpes, chlamydia and AIDS. It is not unusual for inner-city clients to have lost several relatives to the AIDS virus.

The unbearable environments in which clients grow up predispose them to self-medication. In the home there is, at minimum, tension, fighting and a climate of competition and hostility. Many homes are managed by a single parent who is responsible for rearing several children in subadequate, overcrowded conditions. The child's needs for affection, holding, and soothing are rarely met. Parents themselves come from socially and emotionally impoverished families that lack 'positive role models. They lack basic child-raising skills, are overwhelmed and are unable to subordinate their needs to those, of their children. They cannot provide the attention and guidance necessary for children to develop self esteem and resilience. In most instances there is no routine in the home; events, occur unpredictably. There are no set times for eating, bathing, doing homework or sleeping. Sleep may be repeatedly interrupted by people coming and going through the night (this is especially true when the parents or other relatives or "friends" are selling drugs).Turmoil, and lack of nurturing keep the child in an uncomfortable state of agitation and alarm, anxious, searching for cues as to what to do, and ready for the next "crisis."

The community environment also contributes to the phenomenon of self-medication. Increasingly, clients raised in inner cities exist in virtual war zones (Garbarino, 1992). Rapes, batteries, home invasions; robberies and murders are common. Children use "get-away paths" - - alternate routes -- while walking home from school to escape being shot in drive-by shootings. Mothers barricade windows with refrigerators, bookcases and other barriers that can absorb the onslaught of bullets during gang wars. Many housing projects have "safe houses"-- apartments designated as demilitarized zones -- where, on a good day, counselors are available to help those on the brink of madness make it through at least another day. However, individuals can find respite for only a few hours and then must leave, inching past bullet-riddled walls and doorways where gang-bangers wait for sundown so that they may resume the same war they fought the night before.

Schools are "one of the most continuous institutions in children's lives, and one of the most important influences on development" (Garbarino, 1992). Yet in urban war zones they provide no escape from tension and conflict. Instead, they resemble concentration camps, with barbed wire coiled along high fences and guards standing vigilant at each entrance. Metal detectors and x-ray machines are required in most inner city schools, yet guns still find their way, into hallways and lockers, as do knives, razors and almost any other object that can be fashioned into a weapon. The number of fatalities and wounds clients have witnessed are parallel only to those seen by soldiers on battlefields. The chief differences are that most soldiers (1) are at least 18-years of age and have greater emotional, psychological and intellectual resources to assimilate their experiences and (2) are involved in a conflict directed toward some positive end that they have espoused-- there is some meaning to their actions. Children have no framework within which to understand gratuitous violence. The effects of experiencing and witnessing violence are internalized: their bodies keep the score (van der Kok 1996).

The symptoms caused by persistent danger lead children to, find ways to ease their fear and anxiety. Alcohol numbs their awareness and reactions, cocaine makes them feel immune and alive. These drugs are not used recreationally; they are necessary to cope with ongoing tension and highly charged emotions.

Individuals with substance abuse problems who are incarcerated generally undergo some degree of withdrawal, if only psychological. For someone who has not been drug-free in five, ten, or fifteen years, the change is traumatic. Old symptoms reappear, including paranoia, sleep problems, and changes in appetite. The client may feel he is losing his mind. His attention span is often affected; he is nervous and cannot attend to events around him for any sustained period of time. He may develop somatic complaints that plague him: headaches return, old wounds "act up," an ulcer recurs. Some clients can dissociate their symptoms and move forward. Others cannot. It is necessary for the defense team to assess the client's status and use his day-to-day rhythms as a guide to how much and what kind of work can be accomplished.

Sexual, physical and emotional abuse. Almost all clients have been abused in one way or another; most have been abused in a variety of ways. Rarely will a client consider himself to have been mistreated. Rather, he will explain that his father or mother "was strict," or "wasn't affectionate." When asked to describe his childhood or provide examples of instances of "strictness," the client is often, at a loss. He will state that he "can't remember" much about his childhood, or has no memories prior to a certain age. It is not unusual for a client to report that he has no memories before the age of thirteen. This may seem unfathomable to defense team members. However, the inability to recall important life events (in the absence of substantial organic impairment) is often an indication of extreme discord, lack of continuity and abuse. At least two factors may account for memory problems associated with abuse. One is that experiences that are overwhelmingly frightening or are beyond a child's ability to comprehend are dissociated -- split off from consciousness. They are not incorporated into existing cognitive structures and are not available for recall. A second is that traumatic memories are not recorded in the verbal portion of the brain. They exist as images (van der Kolk, 1987). Thus, the client literally cannot talk about them.

Another factor that prevents obtaining precise descriptions of childhood experiences has to do with the client's relationship with his caretakers. Abused children are often extremely (if anxiously) attached to their abusive caretakers, always seeking to win approval and unconditional love but never succeeding. The child is caught in a dilemma: he can conclude either that the parent is "bad" or that he is bad. The younger the child was when the abuse began, the more likely it is that he will conclude that he is bad and "deserves" to be punished. The parent must be good. He idealizes the parent, rationalizing and justifying any actions, no matter how egregious. Consequently, interviews with clients who have been abused produce distorted images of the parent as wholly loving, giving, patient and kind. "I was beaten, but only when I deserved

it. One client gave adoring descriptions of his mother.  Recods later revealed numerous reports to children protective services for child abuse. Another client stated that his father "didn't drink much; just beer," and died of a heart attack. The death certificate showed the cause of death as chronic ethanolism. The man -- who was especially cruel and rejecting -- drank himself to death.

Accounts by clients of the lack or presence of abuse should always be corroborated by collateral interviews and records. In most cases it is unwise to push or harshly confront the client even when there is documentation of the abuse. This may trigger intrusive traumatic memories or increase the client's defensiveness- forcing him to choose between his own welfare and that of his parent. He will almost always protect his parent. In extreme cases, loyalty to parents is so fierce that a client will "forbid" further investigation and will sabotage his own case to protect his family. He will assert "I am responsible for this, not my parents. I don't want to drag my family into this. I don't want to upset anyone. My mother's health isn't too good; I don't want you talking to her. My father has his own life now; don't bother him."

Most clients suffer some form of physical abuse. However, emotional abuse il more prevalent and in many respects carries more lasting effects. Garbarino (1987) describes the forms of psychological battering that cause the greatest harm.

Rejection-    refusal to acknowledge the child's worth and his basic needs; behaviors that communicate abandonment. Includes
                    failing to touch or show affection, or recognize the child's accomplishments, refusing to recognize the child's changing
                    social roles, scapegoating the child, belittling the child, forcing the child outside the family system.

Isolating -     preventing the child from engaging in normal social experiences; failing to provide opportunities for appropriate social
                    interaction. Includes leaving the child in his room (or crib) for extended periods of time, punishing the child's efforts to
                    make friends, have friends in the home, prohibiting the child from joining sports teams, clubs; keeping the child from
                    social activities by requiring an inordinate amount of household responsibilities (such as cleaning and caring for
                    siblings).

Terrorizing - verbally assaulting the child, and creating a climate of fear and unpredictable threat. Includes threatening the child with
                    extreme or vague punishment; extreme responses to child's behavior; frequent "raging" at child, alternating with
                    periods of superficial warmth; placing child in "double binds", such as forcing child to choose between two arguing
                    parents; changing rules; constant criticizing while failing to acknowledge child's having successfully met expectations.

Ignoring-     failing to provide child with essential stimulation. The parent is preoccupied with his or her own goals and interests and
                    is psychologically and emotionally unavailable to the child. Includes not talking to the child, or engaging in
                    conversations limited to instructions and directives but which lack depth and emotion; refusing to engage in
                    conversation at mealtimes; leaving the child without emotionally responsive adult supervision; showing no interest in
                    child's progress in school and teacher's evaluations of child; failing to provide for child's special academic or needs;
                    refusing to discuss the child's problems in a calm, appropriate way; concentrating on other children and other,
                    relationships that displace the importance of the child.

Corrupting - missocializing the child, inspiring and teaching antisocial behavior, reinforcing social deviance. Includes reinforcing
                    inappropriate aggression, goading or forcing the child to fight with other children, initiating or encouraging drug use,
                    reinforcing inappropriate sexual behavior, condoning or encouraging other illegal    or inappropriate behaviors, such as
                    prostitution, theft, burglary.

(Garbarino, 1987, pp 25-29)

The adaptive effects of trauma

The combined effects of these and other factors can result in a cumbersome, frustrating relationship with the client, where progress comes in teaspoons and each task, no matter how small or insignificant, is ponderous and exhausting. Some of the more frequent complaints by members of defense teams include:

• an inability to get a coherent story from the client;
• the client's many different stories, not only of what happened but of his childhood experiences (usually perceived as lying);
• the client's inability (usually perceived as refusal) to identify helpful witnesses (especially for penalty phase);
• the client's inability (usually perceived as refusal) to see the gravity of the situation follow a linear train of thought and do it quickly;
• the client's inability to refrain from discussing his case with every jailhouselawyer and snitch with whom he comes in contact;
• the client's inability to recognize the salient issues of his case; instead focusing on irrelevant, minuscule facts, the consideration of which is tantamount to rearranging deck chairs on the Titanic;
• the client's inexplicable changes in mood and affect;
• the client's insistence on pursuing love interests (sometimes obsessions) in place of working on his case;
• the client's sudden discovery of religion and his need to give sermons rather than develop a cogent defense;
• the client's seemingly manipulative behavior, pitting one defense team member against the other, triangluating the defense team against his family, or refusing to allow a full investigation be conducted;

When a client "cannot remember" entire stretches of his childhood, or fails to see the seriousness of his situation (using humor, changing the subject, asserting that "God will take care of me -- something good will happen,") it could be the result of a brain injury. Similarly, changes in mood or obsessions with trivia or (usually imaginary) love interests may be indicative of an affective disorder or other mental illness. However, these signs are also consistent with severe emotional trauma.

Children who are traumatized -- i.e., experience a persistent state of fear, either from domestic or community conflict and violence -- demonstrate chronic physiological hyperarousal. Perry (1995) found increased muscle tone, an increase in basal temperature, sleep irregularities, an inability to modulate affect, impulsivity and an inability to accurately assess social cues [a state van der KoIk (1987) refers to as "frozen watchfulness" (p. 97)]. If the child finds no relief from this fear and generalized anxiety, his stress response mechanisms become maladaptive (Perry, 1995). He develops cognitive distortions (Pynoos 1990) and is unable to assimilate and organize new information (van der Kolk 1987). The memory traces are affected; the child has difficulty identifying and transferring new concepts into existing cognitive frameworks. More important, traumatized children exhibit very primitive problem-solving skills, have difficulty accommodating previous learning to new situations, and have difficulty learning to self-correct. As a result, they repetitively use old, limited strategies even when these strategies have proven ineffective. These patterns become ingrained, and cognitive development is truncated at a very early age. The child remains in what Piaget termed the preoperational stage, which is characterized by an egocentric view of the world, and a unilateral approach to problem solving. He does not move into the stage of concrete operations, in which children develop the ability to tolerate ambivalence, and learn how to approach problems more broadly. It is at this stage that the child begins to internalize the values of right, and wrong and experience genuine guilt (van der Kolk, 1987). Failure to move fully out of preoperations leaves the child stuck, with a severely impoverished repertoire with which to find a way out.

In a very real sense, there is no way out, because children raised in an abusive environment are powerless. They have nowhere to go and lack the social, emotional, and cognitive tools to extricate themselves. Besides the physiological hyperarousal that impairs learning, memory, and response to stressors, there are other characteristic signs of prolonged psychological trauma that are critical to death penalty work because they provide hypotheses for understanding our clients' behavior and actions. Traumatized people: (1) often "compulsively expose themselves to situations reminiscent of the trauma;" (2) suffer from problems with attention, distractibility and stimulus discrimination; (3) experience a numbing of responsiveness or constriction; and (4) demonstrate alterations of personality and defense mechanisms (van der Kolk, et al, 1996).

Compulsive exposure to situations similar to the original trauma -- "reenactment" -- explains the client's self-defeating behavior, inability to decide who will hurt and help him, and the uncanny ability to elicit disapproval, rejection and even punishment. The client often unconsciously recreates with his defense team the kind of exploitative, abusive relationships he experienced throughout his life. Seen in this light, his seeming manipulative behavior, penchant for disclosing sensitive information to' jailhouse lawyers and snitches who will ultimately testify against him (guaranteed to infiiriate defense team members), and hyper focusing on minutia is understandable as a'manifestation of traumatic reenactment.

Pronounced changes in mood may be attributable to psychic numbing and constriction, which alternate with hyperarousal and impulsivity. Constriction insulates the individual from cognitive and emotional intrusions; its ultimate function is to protect against blinding pain. The cost of dissociation is a limited awareness of one's environment and an inability to recognize and act on important cues and information. The individual appears uninterested, distant, even cocky or overly confident,,with an "I don't care" attitude. In reality, his mind is overloaded and he simply cannot perceive and digest what is being conveyed, at least not at a given point in time.

The importance of insight

An understanding of the pervasive effects of psychological trauma sheds light on the diagnoses given to clients by mental health professionals. More often than not, capitafdefendants have been evaluated and diagnosed in a variety of settings, beginning in childhood and adolescence. School records show referrals for psychological and intelligence testing. Cognitive deficits are often identified. Sometimes the child is placed in special education classes; though in most poverty-stricken areas these resources are unavailable. The records are replete with references to emotional and behavioral problems, noting unexplained aggression and irrational acting out. Teachers are often at a loss as to what to do. As the child grows, his problems become more unmanageable: He cannot keep up in school and does not understand the intense physiological changes he experiences without warning. His attendance falls; most clients, frustrated and humiliated, drop out by the tenth grade. With virtually no skills, guidance or support, the client eventually finds himself either in the mental health or criminal justice systems or both. A host of diagnoses follow, most on Axis II: conduct disorder, antisocial, borderline and narcissistic are the most frequently seen personality disorders. Other diagnoses include polysubstance abuse, depression and borderline intelligence (in more recent times attention deficit and attention deficit/hyperactivity disorders are seen). Treatment recommendations often consist of anger management and social skills classes, sometimes antidepressants. In short, clients fall through the chasms of the educational, social services, criminal and mental health systems. Inevitably, they become caught in the revolving doors of jails and prisons, where they are dismissed as morally inferior and are quickly forgotten.

Gelinas (1983) discusses this "disguised presentation" of survivors of childhood abuse, whose many, complex symptoms lack a distinguishable pattern or discemable etiology. Their relationships are almost always intense, short-lived and destructive. They exhibit a startling propensity for revictimization, which is so great that even their relationships with mental health and criminal justice systems take on the dynamics of the abusive family (Herman, 1992). Herman (1992) suggests that many trauma victims are misdiagnosed, stigmatized with diagnoses of untreatable personality disorders. The most common response is to "refer them" (Lazarus, 1990) and/or blame the clients for their problems. It is Herman's position that continued research into the causes and effects of trauma will result in new conceptualizations of post-traumatic stress disorder and personality disorders. She proposes the diagnosis "complex post-traumatic stress disorder" to describe the effects of prolonged trauma (Herman, 1992)

Herman's diagnosis has not vet been fully adopted. However, the committee responsible for refining the definition of post-traumatic stress disorder (American Psychiatric Association, 1994) considered the work of Herman and others, and, based on this evolving understanding of trauma recommended a new diagnosis of "disorders of extreme stress not otherwise specified" (DESNOS). Criteria for the diagnosis include, among other traits, lasting characterological changes following chronic trauma, and address the impact of trauma at different stages of development. Thus, it is becoming evident that characterological disorders are in many instances part of the expected sequelae of trauma.

Understanding trauma helps defense teams establish and maintain positive relationships with clients. Bowlby (in van der Kolk 1987, p.32) has found that "the most powerful influence in overcoming the impact of psychological trauma seems to be the availability of a caregiver who can be blindly trusted when one's own resources are inadequate." The client's relationship with the defense team is likely his first encounter with individuals who possess greater insight, judgment and skills, and who can therefore be trusted to act in the his best interest, protect him from a death sentence and help him make sense of his unimaginably confusing life. This takes time, and results are achieved as the relationship grows and develops. Trust is earned, not given. The client may test the defense a hundred times. There may be forward movement only to be followed by disappointing regression. The relationship is the vehicle for the work and must maintain a position of prominence. Above all, it should be remembered that in most cases, the client -- no matter how competent and integrated he may sometimes appear -- suffers from a number of intellectual, social and emotional impairments that can take a hundred different forms and have culminated in the charges the clientfaces.

When defense teams can view clients as effectively mute -- with no voice to describe the atrocities they have suffered -- and see clients' perplexing behaviors as diagnostic of the wounds they carry, team members can maintain the perspective necessary to circumvent many of the barriers that inevitably arise during capital cases. To achieve this perspective, defense team members must see themselves as scientists -- trained observers who record and analyze the thoughts and actions of the client in order to uncover how the client's personality developed. Defense team members must also observe their own actions and reactions and see these responses as potentially diagnostic of the client's problems and of the kind of dynamic that is forming between the client and the team. The team should examine extreme negative emotions, including anger, disgust, or a desire to quit working an the case; these are important flags and should be examined by the team. Conversely, benevolent emotions such as extreme empathy and pity, or an intense need to befriend the client, may be a sign that team members have identified with the client in an unhealthy way. One of the strangest indicators of problems is discord within the defense team. If members find themselves taking positions about the client and arguing over who is right, morally correct, etc., it may be a sign that the team has lost its objectivity and recreated a triangular dynamic of victim, perpetrator and rescuer, in which team members take on different rates at different times. This dynamic can be devastating, keeping the team mired in unchecked emotions and unproductive behaviors. In extreme cases, the result is an hysterical frenzy that resembles the dynamics of the client's family and severely compromises the team's effectiveness. The best medicine is prevention. Dialogue among team members is essential. There should bevroutine debriefings of all interactions with the client and lay witnesses, which involve describing the content of the conversations as well as impressions, and reactions.

Maintaining a balanced.perspective requires the ability to simultaneously attend to process and product, see, the forest and the trees, observe the client and oneself. For most people, achieving this delicate balance is an acquired skill; the fruit of patience, determination and practice. However, the benefits to the client and the case can be immeasurable, for insight is the defense team's most valuable tool.

Summary

Capital cases are complex. Many variables determine the outcome of the case, most of which are outside the control of the defense. The factor with the greatest potential for determining the outcome of the case is the client. Problems that undermine the effectiveness of the defense team are usually associated with the client's impairments or to the dynamics between the client and the defense team.

The client comes into the case with numerous handicaps and generally has little insight about his limitations. He is powerless, having been thrust into the hands of people he does not know and does not trust. He has no templates for trusting relationships. He has been exploited and abused; he suffers the invisible scars of this abuse. His intellectual, social and emotional impairments manifest in behaviors that thwart the efforts of the defense team: He can't give a consistent, coherent account of the offense, adequately understand the charges or the state's case against him, identify lay witnesses, or work with expert witnesses. His moods change inexplicably,  and he appears manipulative, often refusing to assist with investigation into essential aspects of the case (most notably, mitigation.

The client's behaviors are directly related to the nature of his neglect and abuse. Left unchecked, the effects of the abuse will take control of the case, perpetuating a pattern of self-destructiveness. This will bleed onto the defense team, infecting members and causing internal conflict. The relationship between the client and the defense team is the primary vehicle for reshaping the client's thinking and behavior. This requires objectivity and insight. The team must work systematically to accomplish important instrumental tasks, while monitoring the dynamics between the client and the team. Generally, a stable, dependable relationship with the client enables him to disclose his "story" and ameliorates his self-defeating tendencies. This in turn allows team members to develop a compelling theory of defense.

Achieving a stable relationship between the client and the defense team is an ongoing process with many ups and downs. The key is perseverance and a mechanism for processing day-to-day events in light of overall goals. Conversation and interaction is essential. The left hand must know what the right is doing. All teams members need to be heard, all significant concerns discussed. This helps identify important, unknown issues, as well as discharge the tonic effects inherent in sharing the burden of pain.

Sometimes barriers seem unsurmountable, problems insoluble. Rarely is this true. Rather, the wisdom of the group is vast, its resources great. When in doubt, simply show up and be present. Trust the process. Take what you get and see what happens; one never knows how today's efforts will shape events ten years hence. Learn from each day's mistakes; forgive others their shortcomings and failures and move on. Above all, be patient with yourself and never give up.