Edith Georgi Houlihan is a senior trial attorney for the Dade County Public Defender in Miami, FL. An adjunct professor
at the University of Miami Law School, she concentrates on death penalty cases.
It should be difficult for me to get up here in front of you again -- after you have convicted Joe of decapitating a two-year-old in her sleep. . . .It should be difficult to now ask you to look at the big picture. . . .
It should be difficult to ask for his life, but it is not.
You have rage toward this crime; you feel anger and revulsion; we talked about that in jury selection. I don't have to wonder if you will want to lash out and get revenge on Joe -- you will. It's natural. But just as I understand your emotions, just as I understand your verdict, I ask you now to understand Joe. To understand his life, and how he got to this place -- the point of having his life in the hands of twelve strangers. It should be difficult to ask you to do these things, but it is not. For in understanding his life, we understand a little more about ourselves and our evolving world.
Sadly, in understanding this particular life, we understand the effects of trauma, untreated trauma. We must first look through the eyes of a nine-year-old boy watching as his sister, his caretaker, is shot dead in cold blood by a madman. We must understand how in the poor labor camps in which he lived, there was not time for grief, for mourning, for healing. There was only silent suffering. Then we look through these same eyes two years later, and we feel the fear and horror and pain of this same boy being raped, brutally, violently, by a circus clown. Being held helpless, alone, and left covered in shame. Injured so much that tears in his anus were still visible when he was finally examined by a doctor several days later. This rape became the dark family secret -- hidden from his father even to this day.
These same events, if they occur today, prompt a rush of support and therapy, to comfort the child and to avoid long term damage. Such comforts were unknown to Joe. Why do parents fear a convicted sex offender living near their children? We know instinctively, now, the long term effects of this kind of trauma. The long term effects of sexual abuse are finally recognized -- this is a problem which is now confronted openly. Such was not the case 20 years ago in the poor farming camps of rural Honduras.
We have no pictures of the terror Joe witnessed as a young child watching his sister murdered; there was no court for that. We have no pictures of the disgusting injury he suffered during rape. But those pictures exist in Joe's mind. Each day is colored by the trauma of those events.
Joe learned early on to hide pain, to deny suffering, to ignore the pain of his life, the pain which led to this crime. Is it any surprise that he must deny this crime? To admit the crime is to admit the hurt. And he was taught from childhood to deny that pain. You may have observed some visible emotional reaction for the first time during the penalty phase; what you saw was relief. For the first time the silent suffering is over -- he does not have to live in total denial of being a victim.
So, just as I understand your verdict, I ask you now to understand Joe's life, how it led to this moment, how it has changed since the horrible moment of this case. If you can understand his life, you will know that the only appropriate verdict in this case is to vote for life.
A vote for life [imprisonment] does not excuse the crime -- it says: You will be punished. . . .You will have to suffer with your crime for the rest of your life.
A vote for life [imprisonment] says: We know this was out of character for you, it was a single act of violence in your life.
A vote for life [imprisonment] says: We agree with the experts -- you will continue to be a model prisoner.
A vote for life [imprisonment] says: We agree with your family -- even from behind bars you have done good things for people.
A vote for life [imprisonment] says: We know why this happened; we know the violence you suffered; we want to stop the cycle of violence.
A vote for life [imprisonment] says: We know you loved and cared for this child; we know you didn't want to kill this child you loved.1
For many -- if not most -- defense attorneys, representing a person who kills a child is a repulsive idea. This is indeed ironic, because in every child-killing case there is at least a partial defense and, further, there is almost-guaranteed to be built-in mitigation. This is because of the cornerstone fact that no one, including the accused, wants to kill a child. In most cases, there is some inner turmoil which, demon-like, drove the defendant to the act. To effectively defend and mitigate such a case is to truly understand how that demon came to be -- and to capture, harness, and explain it. In this process, each case provides a new lens on life crises, magnifying individual threads, enhancing certain details, to give a truer picture of the entire fabric -- an opportunity to know ourselves and our world just a little better. And, the more difficult the case, the more we learn.
Working with the Client -- Act Quickly!
More than in any other case, client relations are critical in a case of child murder. The defense begins only when we understand the forces which drove our client to this point. But, just as no one wants to be a child killer, almost no one wants to admit that status under any circumstances -- not to the police or to anyone else, including the defense attorney. A client may think, what if the truth is too horrible and the attorney, the only one working for me, should quit because of what was done? Just as there is a need to confess in some cases, there is a need to deny in these cases; given the opportunity, denial will begin to set in like cement. If there is a confession, it is probably only part of the story and it was probably obtained only after applying considerable pressure.Despite the likely onset of denial by the client, the attorney may have a brief window of opportunity in the early stages of the case, a window which will be closed as the client begins to heal and face the future. As the client begins to realize what treatment the label "child killer" or "child molester" brings about, that denial will be complete. It often becomes a matter of personal safety. Therefore, the attorney must act quickly to glean the understanding of the crime early on -- knowing that this opportunity may be lost forever as the client enters the denial stage.
In the early stages of incarceration, the client may suffer tremendous pain, and even be suicidal. Remorse may not be obvious at first. Instead of remorse, the attorney may hear much from the client about what he has suffered. Just keep listening; eventually this will reverse itself. In the meantime, it is important to give the client the room to vent and unload his pain. The attorney may need to avoid talking about the crime itself with the client. If there has been a confession, the client has been pressured enough; if not, so much the better.
It is important to listen for any clues which can lead to mitigation; these will be found in the worst experiences of his childhood, but it may take weeks or months of intensive interaction to unpeel the layers.
Everyone else in the system will be punishing the accused from day one -- he will suffer insults and humiliation which he will probably not even tell his attorney about. As his advocate, the attorney should counsel the client about this mistreatment and prepare him for the worst. Many corrections departments have their own way of welcoming those accused of child murder -- meals may be reduced, television and phone privileges may be delayed, guards may insult, and otherwise abuse the client -- the little things that can make life in prison a living hell will be more abundant. Many other inmates also have their special way of welcoming those charged with child murder, and guards will frequently allow abuse to occur.
The attorney's frequent presence at the jail early on will begin to provide the client some protection. The absence of counsel may be used by the guards to damage the client even more and just being there will begin to build the attorney-client relationship. This is not the time for the attorney to delegate client responsibilities to others -- this is a critical time for discovering the most subtle clues and reactions and developing a trust relationship with the client. The attorney's investment of time early on will pay off later -- often because the attorney will have seen her client's pain with her own eyes and it will be much easier and more convincing when the attorney attempts to convey this pain to jurors.
The possibility of pleading the case should be considered early on; once denial sets in, the likelihood of a plea diminishes.
So What's the Defense ?
Assume there is sufficient evidence to establish that the client committed the crime and the attorney has no possibility of a straight "not guilty" defense. The defense will then incorporate the answer to the question of why this death happened, in preparation for the penalty phase, into her defense. Certain defense issues, if not successful at the guilt/innocence phase, will help set up a strong penalty phase presentation.An insanity defense should be considered. Even if the client turned himself in and reported to the police much of what happened, or that he "just snapped," the client's actions may be part of a delusionary, or other psychotic, episode. Where there is no obvious history of mental illness, remember that the onset of schizophrenia as well as some other major mental illnesses, can occur in the late teens or early twenties in men. If the events surrounding the killing are a response to an earlier trauma, there may be elements of a post traumatic stress disorder (PTSD) defense as well.
Especially in deaths of newborns, consider post partum psychosis. United States law is quite archaic in appreciating the extent that this illness may constitute a legal defense.2 Be aware that under British laws still in effect in many states, a mother charged with killing a child within the first year of the child's life can be charged with manslaughter at most.
Finally, in a case of overreaction during punishment or rage, consider the effect on the parent who is already out of control when the child refuses to obey. Every parent has overreacted at some point and can at least understand the loss of control. This approach may move the conviction from first-degree premeditated murder to second-degree or manslaughter -- possibly even less, depending on the state.
Felony murder using aggravated child abuse as the underlying felony may be argued by the prosecution to rebut any defense less than insanity. Depending on the nature and number of the injuries, the felony murder charge may be barred under the merger doctrine. Simply stated, this is the proposition which recognizes that if the lethal act for the underlying felony is also the cause of the homicide, the felony murder theory is barred. Further, some courts disapprove of the felony murder theory in this situation because it relieves the prosecution of the burden of proving premeditation. This argument has enhanced significance when it makes the difference between a capital murder conviction
or not.3 Still, the attorney may face reconciling inconsistencies between the guilt/innocence phase and the penalty phase. Counsel may have a "not guilty" defense during the first phase which she cannot give up and which does not tie into the penalty phase consistently as would, for instance, an insanity or rage reaction defense. If possible, the defense may elect to use a different attorney during the penalty phase from the one who argued for acquittal and has since been rejected and lost credibility. The above-excerpted argument suggests a means to reconcile the inconsistencies between the guilt and penalty phases.
Be Sure To Confront Gory Photos Early On
By the time of trial, counsel may have grown quite used to the gory pictures, but do not forget the shock of first seeing them, because the jury won't. The author's approach is to condition the court and its personnel long before the trial begins. If presented properly, a motion to prohibit admission of the photos, heard weeks before trial, can achieve several goals -- it may result in weeding out the worst photos, converting them into black-and-white for admission, and/or the court authorizing their use during jury selection.4 Even if the motions are denied, counsel will have diffused some of the suspenseful shock value. The attorney can always describe the worst of the pictures during jury selection to the best of her artistic ability.Experts -- the Link to Explanation & Mitigation
Given that there will be some evidence of the client's past, either childhood trauma or mental illness or some combination of the two, the attorney's choice of experts and control of his/her experts is critical. Counsel should look beyond the typical professional forensic resources. For instance, if the client suffered sexual or other serious abuse as a child, the attorney might approach the department of child psychiatry in the nearest medical school for help. Counsel should be sure to explore the long term effects of such abuse. There is a growing body of literature to support the theory that sexual abuse has greater impact on the development of a young man than a young woman. This has to do with the perceived "unnaturalness" of the sexual act and the inherent violence -- the more violent, the more likely it is to have longterm effects.5 Consider offering testimony from trauma treatment centers as to the care that is made available today in similar cases and the reasons for such precautions, and compare with the care (or, most likely, lack of care) afforded the client when he was abused.
Finally, counsel may elect to explain how physical violence to an individual at an early age affects the soul and integrity of the person, and leads to the warped development or even death of self-esteem.6
Counsel should prepare and protect his/her experts. In many states, the law is settled that an expert cannot be required to compile documents for discovery which he/she does not otherwise have, or produce documents for the prosecution if he/she does not intend to testify.7 The defense expert(s) should also be entitled to review any impeachment material well in advance of trial. This is a fair request, even in limited discovery states, if considered from the time-saving point of view.
Further, experts often give up research time, patient time, and personal time to assist in the defense. They also often accept a reduction in payment for their time as well as adverse peer pressure because this is a death penalty case. Be sure to explain the court proceedings to the expert if this is the expert's first time and warn them of quirks and idiosyncrasies of the players. Try to prevent them from being abused by the court and the prosecutors.
Emotion Defies Quantification
I want to extend a congratulatory message to Barry Scheck and Andy Good on the Louise Woodward case. Although not a capital case, their work on this case was no less than outstanding and provides an example for other attorneys defending accused child-killers.The power of emotion in these cases defies quantification. Even if the judge limits photos to wallet size black and whites and limits the evidence to unembellished facts, the vulnerability and innocence of any child victim permeates the courtroom from start to finish. We may grow dangerously accustomed to this presence as we live with the case over the year or years of preparation, but we must not lose touch with the emotional element and its effect on the jurors. The agony of a child's death will fill in for missing proof; it will counter reasonable doubt; it will blur the law as given in the instructions.
Defending a person accused of child murder is neither rational or predictable. It is like walking through a minefield or climbing a treacherous mountain without weather reports. Still, in the challenge is the reward. In defending a client against these most repulsive of charges we prove to ourselves and our clients that there is hope, even in the most hopeless of situations.
I will end with some words borrowed from David Bruck in his penalty phase closing in the Susan Smith trial -- this message applies as well to lawyers who hold the lives of accused child murderersin their hands as it does to jurors:
I have to say that, although you didn't ask for this job, and it's been long and it's been hard, and I know it's been draining, but I have to say that I do rather envy you, because the twelve of you can do something. You cannot make things very much better, but you can bring them a little bit of blessed relief by your verdict. And that's not something that really anyone else could do, much as so many people in the courtroom wished that we could. But you can.
Just like Bruck's jury, defense counsel in a capital child-killing case probably did not ask to defend the case, and counsel will certainly be drained by the effort spent defending the client, but also like the Smith jury, the attorney can help bring relief to the tragic situation. Counsel can take care of the survivors, including the accused.
Notes
1. Excerpted from a penalty phase closing argument by the author.2. For an excellent review of the law in various United States jurisdictions and the extent to which post partum psychosis can constitute a defense, see Reece, L., Mothers Who Kill: Postpartum Disorders and Criminal Infanticide, 38 U.C.L.A. Law Review 699-757 (1991).
3. See e.g. Mills v. State, 476 So.2d 172, 180 (Fla. 1985), cert.denied, 475 U.S. 1031, 106 S. Ct. 1241, 89 L. Ed. 2d 349 (1986); State v. Lucas, 759 P.2d 90 (Kan. 1988); People v. Smith, 678 P.2d 886 (Cal. 1984).
4. I always go back to The Champion, September/October 1988 to the article by H.G. Beaver, Technicolor Trials: Limiting the Use of Gruesome Photographic Evidence, for inspiration and guidance.
5. See articles by Garnefski, Gilligan, Gladwell, and Terr listed below.
6. This process is persuasively explained by James Gilligan in Violence, Our Deadly Epidemic and Its Causes, New York, G.P. Putnam (1996).
7. See e.g. Sylken v. Elkins, 644 So.2d 539 (Fla. 3rd DCA 1994).
Readers wishing to contribute information, ideas or articles for this column should contact :
Tanya Greene
NACDL Death Penalty Research Counsel
83 Poplar Street, NW
Atlanta GA 30303
Phone (404) 688-1202
Fax (404) 688-9440
e-mail tgreene@schr.org
For further reading in this area, see:
Garnefski, N. Child Sexual Abuse and Emotional and Behavioral Problems in Adolescence: Gender Differences, 36 J. Am. Acad. of Child & Adoles. Psych. 323-329 (1997).
Gladwell, M. Damaged, The New Yorker, pp. 132-147 (Feb. 24-March 3, 1997).
Hall, H., ed., Lethal Violence 2000. Kameula, Hawaii: Pacific Institute for the Study of Conflict and Aggression (1996).
Herman, Judith, Trauma and Recovery: The Aftermath of Violence -- From Domestic Abuse to Political Terror. New York, NY: Basic Books/Harper Collins(1997).
Kohl, M., ed., Infanticide and the Value of Life. New York: Prometheus Books (1978).
Moss. Postpartum Psychosis Defense: New Measure for Mothers Who Kill Infants, ABA Journal, August 1, 1988, at 20 (1988).
Mowbray, C., Oyserman, D., Zemencuk, J. & Ross, S. Motherhood for Women with Serious Mental Illness: Pregnancy, Childbirth , and the Postpartum Period, 65(1) Am. J. Orthopsych. 21-38 (1995).
Piers, M., Infanticide. New York: W.W. Norton & Co. (1978).
Reece, L., Mothers Who Kill: Postpartum Disorders and Criminal Infanticide, 38 U.C.L.A. L. Rev. 699-757 (1991).
Resnick, P.J., Child Murder By Parents: A Psychiatric Review of Filicide, 126(3) Am. J. Psych. 325-334 (1969).
Terr, L., Childhood Traumas: An Outline and Overview, 148 Am. J. Psych. 10-20 (1991)