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Counselor

When it comes to questions of life or death, even the most heinous of convicted killers is entitled to argue that he or she should be spared execution.

Digging up information that will persuade judges and juries to favor life in prison over death row is the job of a new breed of legal worker, the "mitigation specialist."

Oddly enough, some of the most critical nuggets that could help spare a killer's life can be the most difficult to come by, said Cheryl Fisher, who spends months interviewing and re-interviewing murder suspects and their families, tracking down decades' worth of documents and re-creating the past.

A common misconception is that defendants and their families are eager to share their stories and will say anything to save their loved ones' lives, Fisher said.

If her clients open up to her, she said, it's only after she's visited them two or three times a week for months. It's also rare for family members to divulge their deepest, darkest secrets right away, Fisher said.

"I'm extremely tenacious though, and eventually I'm going to find a great historian in the family or someone who is willing to talk to me," Fisher said.

When you think about it, a family's unwillingness to talk makes sense, defense attorney Laura Udall said.

"They don't want to be responsible for creating someone who has committed such a deed," Udall said. "Sometimes they don't want to admit it, or sometimes they just might not have the insight to see what went wrong."

Unheard of a decade ago, mitigation specialists such as Fisher and Diane Salvestrini have come to play a crucial role in capital murder cases. When jurors convict someone of capital murder, they are asked to decide if there are aggravating circumstances that dictate whether the defendant deserves to die.

To counter those prosecution arguments, people such as Fisher and Salvestrini begin investigating capital-murder suspects within weeks of their arrests, looking for anything to convince juries that there were factors shaping the defendants' lives beyond the suspects' control.

The mitigation specialist continues investigating until a case goes to trial — usually 18 months or so after an arrest — talking to the defendant; the defendant's family, neighbors or teachers; or anyone else who might be able to provide some insight. The specialist also gathers medical, school, psychiatric or any other documents.

"I think a lot of lay people believe it's a bunch of hooey, but people are formed by the things in their background," Udall said. "Most people don't come out of the womb evil. They are created by those around them."

Many times they find their client's mother abused drugs and alcohol while pregnant with the suspect, Salvestrini said.

Abuse — whether it's alcohol, drug, physical, sexual or emotional — seems to be a constant theme in these cases, Fisher and Salvestrini said.

A documented history of mental illness or head injuries is another common factor, Fisher said. A damaged frontal lobe can mean difficulty in making executive decisions, and illicit drugs don't help, she said.

Defense attorney Dan Cooper said the work of a mitigation specialist is tedious but crucial.

"It takes a lot of time if you are digging back 20, 30 years," Cooper said. "You are reconstructing their entire lives. Sometimes it can't be done, but you've got to try to find out as much about their past as you can, because that's usually a good clue to their present.

"It's very, very critical to find out why your client became what they became, and sometimes it's not good enough to save their lives, but there's always a reason for their behavior," Cooper said.

Defense attorney David Darby, who has defended 11 capital-murder suspects, said death sentences have actually been overturned because lawyers have failed to present enough mitigation evidence.

Rick Unklesbay, chief trial counsel for the Pima County Attorney's Office, said sentences have been overturned, but because current standards have been unfairly applied retroactively.

What happens if high-tech brain scans in the future show irregularities in current death-row inmates' brains? Should their sentences be reversed, even though prosecutors had no way of knowing the future? Unklesbay said.

Unklesbay also questioned just how much money is paid to mitigation experts and the mitigation witnesses whom defense attorneys put on the stand.

It's not unusual for psychologists to testify about a defendant's lack of "future dangerousness" or for former prison officials to testify about prison living conditions.

"It's become a cottage industry," Unklesbay said.

Phil Maloney, who heads Pima County's Office of Court Appointed Counsel, said mitigation experts paid for by taxpayers start out at $60 an hour, but judges can increase their hourly wage.

Since Jan. 1, 2006, the Office of Court Appointed Counsel has paid the five mitigation specialists it has under contract a total of $168,000 for work on 12 death-penalty cases and nine non-death-penalty cases, Maloney said.

The Pima County Public Defender's Office and the Pima County Legal Defender's Office, which also represents murder suspects, hire mitigation specialists as well. Figures from those offices weren't immediately available.

Whatever the cost, it's worth it, said Pima County Public Defender Robert Hirsh.

"The death penalty should definitely be handed out only in circumstances where you have the worst of the worst," Hirsh said. "It's important for those who sit in judgment on others to hear about these people's backgrounds."

Unklesbay said he tries to get the jurors to focus on the facts of the case instead.

"It should not be surprising that people who commit criminal acts didn't have a good childhood," Unklesbay said. "There comes a point, though, when they have to take responsibility for their actions. There are a lot of people who have gone through some difficult times in life and didn't become killers."

Darby said mitigation specialists earn their fees, considering the demands of documenting the life of someone in his 30s or 40s who may have lived in dozens of places.

"Seventy-five dollars or $100 an hour wouldn't even begin to compensate you for what you have to go through," Darby said.

Fisher, who spent 15 years as a private investigator before she began specializing in mitigation, said most of her clients are people who simply made horrible, horrible decisions.

In many cases, if a client had had just one person take a special interest in him earlier in life, his life would have turned out completely differently, Fisher said.

"I have not come across someone with no redeeming factors whatsoever or a case where no one would be affected by my client's death," Fisher said. "There are true psychopaths in this world, but I've never had one for a client."

Salvestrini said she takes only a limited number of capital cases because the job is a difficult one. She spends most of her time as a regular defense investigator.

"The worst part of my job is trying to detach myself so I don't get too emotionally involved," Salvestrini said. "You can't take it home, or it will eat you up inside."