In the days when Boston Marathon bomber Dzhokhar Tsarnaev’s jury was deliberating about whether to sentence him to life in prison or death, I thought often about members of his legal team who’d worked behind the scenes: the “mitigation specialists.” I’m a colleague of these people—I belong to a small group of journalists who supplement our income with freelance “mitigation” work. That means we do a special type of investigation for death-penalty cases. Our clients are accused and often, like Tsarnaev, already convicted. The prosecution paints them to the courtroom and press as monsters.
Mitigation investigators try to de-monster the monsters. We do this mostly by talking to people who know our clients—by visiting their hometowns and even foreign homelands, their schools, churches, former workplaces, Alcoholics Anonymous meetings, and old Army buddies’ houses. For one case I went to five cities and two countries, and interviewed 80 people. We dig into an entire biography, starting from childhood.
We search out hardship in early life. In death-penalty cases, this is usually like shooting into barrels of fish. Capital murder is an extreme behavioral outlier and almost always is associated with a gross inability to control one’s frustration, anger, and other antisocial impulses. The problem is most often associated with conditions like intellectual disability, mental illness, exposure to environmental and workplace toxins, and substance abuse. Learning this background can liberate a jury from simplistic and legalistic notions of “guilt,” toward the more complicated understanding that when terrible things happen to someone, even grotesquely violent responses are imbued with a quantum of moral innocence.
Capital defense lawyers like to hire journalists. We flesh out clinical-sounding histories with real people talking about real things. We focus on narrative; we attend legal trainings that feature workshops about Aristotelian poetics. Not only do we unearth our clients’ childhood suffering, we also show how, like all humans, they tried to push back against those sufferings—tried to overcome. But they weren’t so lucky.
Exposition. Rising action. A plot gone awry and a horrible climax. The denouement remains to be written. We mitigation specialists hope the poetics of our client’s life will move the jury to consider their own poetics. To think, as they lie in bed at night after court: “There but for the grace of God go I. Or my child!” They might vote to kill a monster, but not a human. Mitigation narratives don’t work all the time—witness what’s just happened with Tsarnaev. But they work often enough, and they save lives.
As a result of this work, I see capital cases from the inside. I see privy things. Very occasionally, I see strong evidence that someone is actually innocent: they seem truly to have done no wrong. These cases underscore the State’s outsized and often corrupt power, exercised though egomaniacal and dishonest district attorneys, lying cops, inept “experts.” These cases have become a powerful argument against the death penalty.