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A FORMER ALABAMA APPELLATE JUDGE’S

PERSPECTIVE ON THE MITIGATION FUNCTION

IN CAPITAL CASES

William M. Bowen, Jr.*

I have reviewed the Supplementary Guidelines for the Mitigation

Function of Defense Teams in Death Penalty Cases (“Supplementary

Guidelines”)

from the perspective of a former presiding judge of the

Alabama Court of Criminal Appeals who has retired from the bench and

has since participated in the defense of indigent prisoners in capital

cases. The Supplementary Guidelines are consistent with the well-

established and quite obvious judicial philosophy that “[h]ighly

relevant—if not essential—to [the judge’s] selection of an appropriate

sentence is the possession of the fullest information possible concerning

the defendant’s life and characteristics.”

I have always firmly believed

that judges and juries should have as much information as possible

before determining whether a defendant should live or die:

The knowledge of the life of a man, his background and his family, is

the only proper basis for the determination as to his treatment. There is

no substitute for information. The sentencing judge in the federal court

has the tools with which to acquire that information. Failure to make

full use of those tools cannot be justified.

Over the course of my legal career as a prosecutor, judge, and

defense attorney, I have come to appreciate the constitutional necessity

“that the sentencing authority have information sufficient to enable it to

consider the character and individual circumstances of a defendant prior

to imposition of a death sentence.”

I am convinced that a mitigation

* William (“Bill”) M. Bowen, Jr., served as a judge on the Alabama Court of Criminal

Appeals from 1977 to 1995. He was the presiding judge of that court for eight years. He is a

shareholder in the law firm of White Arnold & Dowd, P.C. He was the only member of the capital

defense team from Alabama who represented Eric Robert Rudolph from start to finish in a complex

federal death penalty prosecution ending with a negotiated disposition. He gratefully acknowledges

the expert assistance of David S. Brown, a student at the University of Missouri-Kansas City School

of Law, in writing this Article.

1. S

UPPLEMENTARY GUIDELINES FOR THE MITIGATION FUNCTION OF DEFENSE TEAMS IN

DEATH PENALTY CASES, in 36 HOFSTRA L. REV. 677 (2008) [hereinafter SUPPLEMENTARY

GUIDELINES].

2. Williams v. New York, 337 U.S. 241, 247 (1949), superseded by statute, Sentencing

Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987.

3. Id. at 249 n.14 (quoting Lewis B. Schwellenbach, Information vs. Intuition in the

Imposition of Sentence, 27 J.

AM. JUDICATURE SOC’Y 52, 52 (1943)).

4. Gregg v. Georgia, 428 U.S. 153, 189 n.38 (1976).

806 HOFSTRA LAW REVIEW [Vol. 36:805

specialist is an absolutely critical member of the capital defense team,

and that the mitigation function should be conducted in accordance with

the ABA Guidelines for the Appointment and Performance of Defense

Counsel in Death Penalty Cases

and the Supplementary Guidelines.

This Article will share some of my observations based upon my

experiences both from and in front of the bench, which have led me to

this conclusion.

At the time I was elected to the Alabama Court of Criminal Appeals

in 1976, I was the youngest appellate judge in the nation with a lot to

learn. This was not long after the landmark decision in Furman v.

Georgia.

The Court soon began once again deciding capital cases.

the time, I was very much in favor of the death penalty. I had been a

prosecutor with the Alabama Attorney General’s office, and, although a

practicing Catholic, it seemed that capital punishment was a necessary

evil.

In those early years following Furman, many of the Alabama trials

that resulted in the death penalty were very short. Sometimes a death

penalty trial only lasted a day. Mitigating evidence was scant and,

outside of the statutory list of mitigating factors,

very little of what I

have come to know as mitigating evidence was presented to the trial

judge and jury. I now realize that there is an entire world outside the

statute and that the statutory list of mitigating circumstances does not

even begin to scrape the surface.

The reality is that the death penalty is so political in Alabama that

as a practical matter, if you are against the death penalty, you cannot get

elected as a judge or any other public official. Once elected, your rulings

must reflect your bias for death.

If your rulings show that you reverse

too many high profile death penalty cases, you will surely be beaten in

5. ABA GUIDELINES FOR THE APPOINTMENT AND PERFORMANCE OF DEFENSE COUNSEL IN

DEATH PENALTY CASES (rev. ed. 2003), in 31 HOFSTRA L. REV. 913 (2003) [hereinafter ABA

UIDELINES]. The ABA GUIDELINES are also available online at

http://www.abanet.org/deathpenalty/resources/docs/2003Guidelines.pdf.

6. S

UPPLEMENTARY GUIDELINES, supra note 1.

7. 408 U.S. 238, 239-40 (1972).

8. Prior to Furman, the last person executed in Alabama was William F. Bowen, Jr. (no

relation to the author). The next person to be executed in Alabama was John L. Evans, III, in 1983.

For a list of Alabama executions, see Ala. Dep’t of Corr., Inmates Executed in Alabama,

http://www.doc.state.al.us/execution.asp (last visited Mar. 24, 2008).

9. A

LA. CODE § 13A-5-51 to -52 (2006).

10. I had one colleague confide in me, “What can I do?” Even though he knew a state witness

was probably lying, he told me, “I just can’t come out and say that.” See generally Steven B. Bright

& Patrick J. Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the

Next Election in Capital Cases, 75 B.U.

L. REV. 759 (1995) (examining the death penalty’s

prominence in judicial elections).

2008] APPELLATE JUDGE’S PERSPECTIVE 807

your bid for re-election. There are very few judges who can withstand

that type of pressure.

The prosecution enjoys such an advantage in this

respect that it is not unusual for an Alabama trial court merely to adopt

in total the state’s proposed findings of fact and conclusions of law in

capital post-conviction cases, misspellings and all. From the appellate

level it did not seem so horrendous,

but once I entered the pits of trial

practice I realized how abhorrent it truly was and is. If a judge is going

to impose a sentence of death, the judge should have to write his or her

own order.

The very strong political pressure to impose and affirm death

sentences in Alabama imposes an extra-heavy duty on the defense team

to conduct a thorough investigation so that the judge and jury can

recognize that the capital defendant is a human being and not just a

monster.

It does not matter what the statute says about the prosecutor’s

burden to establish aggravating factors beyond a reasonable doubt.

Under Alabama’s sentencing scheme, if the jury has found the defendant

guilty, they have also found at least one aggravating factor. Therefore,

even if the jury recommends life imprisonment, the judge can override

11. I agree with Justice Stevens’s conclusion that Alabama’s standardless judicial override of

jury life sentences violates the Eighth Amendment, puts the defendant’s life in jeopardy twice, and

injects improper considerations into the capital sentencing decision:

Community participation is as critical in life-or-death sentencing decisions as in those

decisions explicitly governed by the constitutional guarantee of a jury trial. The “higher

authority” to whom present-day capital judges may be “too responsive” is a political

climate in which judges who covet higher office—or who merely wish to remain

judges—must constantly profess their fealty to the death penalty. Alabama trial judges

face partisan election every six years. The danger that they will bend to political

pressures when pronouncing sentence in highly publicized capital cases is the same

danger confronted by judges beholden to King George III.

Harris v. Alabama, 513 U.S. 504, 519-20 (1995) (Stevens, J., dissenting) (footnote omitted)

(internal citation omitted).

12. Weeks v. State, 568 So. 2d 864, 865 (Ala. Crim. App. 1989).

In this case, Weeks has not raised an objection to the circuit court’s verbatim

adoption of the State’s proposed findings of fact and conclusions of law. However, we

issue a caution that courts should be reluctant to adopt verbatim the findings of fact and

conclusions of law prepared by the prevailing party. Despite the fact that such a practice

is subject to criticism, the general rule is that “even when the trial judge adopts proposed

findings verbatim, the findings are those of the court and may be reversed only if clearly

erroneous.”

Id. at 865 (citation omitted).

13. Bryan Stevenson has stated it in his usual eloquence:

I believe each person in our society is more than the worst thing they’ve ever done . . . . I

believe if you tell a lie, you’re not just a liar. If you take something that doesn’t belong

to you, you’re not just a thief. And I believe even if you kill someone, you are not just a

killer. There is a basic human dignity that deserves to be protected.

Paul M. Barrett, Bryan Stevenson’s Death-Defying Acts, L

AW SCH., Autumn 2007, at 32, 34,

available at http://www.law.nyu.edu/pubs/magazine/autumn2007/documents/Stevenson_000.pdf.

14. A

LA. CODE § 13A-5-45(e) (2006).

808 HOFSTRA LAW REVIEW [Vol. 36:805

that and impose a sentence of death.

To defend their clients effectively,

defense attorneys must behave as though they have the burden of proof

and develop an affirmative case for life. As Professor Gary Goodpaster

wrote a quarter century ago: “The defense role at the penalty

phase . . . parallels somewhat the plaintiff’s role in a civil case: the

defense advocate must establish a prima facie case for life.”

Because capital prosecutions typically involve horrible crimes that

will deeply offend the sensibilities of judges and juries, defense counsel

must provide compelling reasons not to execute the defendant. Although

that is sometimes difficult, I am convinced that everyone’s life contains

a reason or a number of reasons why the death penalty should not be

imposed. Given the political climate in Alabama, if we only know the

defendant from the context of the crime, and do not know him or her as a

person, it is almost inevitable that the sentence will be death either

through the jury or judicial override, and that the sentence will be

affirmed on appeal in the state courts. Mitigation evidence is the defense

team’s most powerful tool to fight this uphill political battle.

I am not saying that defending death penalty cases in Alabama is

hopeless by any means. To the contrary, my experience on the court

convinced me that when the background and character of the defendant

have been thoroughly investigated and presented, there is a greater

chance a death sentence will not be imposed or, if imposed, will be

reversed on appeal. I read every page of every record on appeal in every

capital case I reviewed as an appellate judge searching for plain error as

required.

I was convinced in every death penalty case I affirmed that,

based on the record before me, the sentence was just.

It always troubled me when, as an appellate judge, I had virtually

no information about the defendant. Sometimes I had a vague feeling

that there must be more to this story of human tragedy, but without

defense counsel having provided a better picture, I was literally helpless.

I vividly recall the way I felt on the night of Alabama’s first post-

Furman execution. John Evans was executed on April 22, 1983.

Evans

15. § 13A-5-47(e); see also Scott E. Erlich, Comment, The Jury Override: A Blend of Politics

and Death, 45 A

M. U. L. REV. 1403, 1427 (1996).

16. Gary Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty

Cases, 58 N.Y.U.

L. REV. 299, 337 (1983).

17. A

LA. R. APP. P. 45A:

Scope of review in death cases. In all cases in which the death penalty has been

imposed, the Court of Criminal Appeals shall notice any plain error or defect in the

proceedings under review, whether or not brought to the attention of the trial court, and

take appropriate appellate action by reason thereof, whenever such error has or probably

has adversely affected the substantial right of the appellant.

18. See Deborah W. Denno, Getting to Death: Are Executions Constitutional?, 82 I

OWA L.

2008] APPELLATE JUDGE’S PERSPECTIVE 809

stood up before the jury and told them if they did not sentence him to

death, he was going to get out and kill them all. He won habeas corpus

relief in the Court of Appeals for the Fifth Circuit, which was reversed

by the Supreme Court.

At some point in the appeal process, Evans

dropped his appeals and asked to be executed.

I remember the night

they executed him. I stayed up until midnight, the time set for execution

in Alabama, half expecting heavy black clouds of judgment to roll across

the state. Nothing had been filed in the Court of Criminal Appeals on his

behalf, so there was nothing for me as a judge to act on. Although at the

time I was in favor of the death penalty, I remember having a gut feeling

that there was something not right about this; that the state should have

no right to kill someone; that killing an individual to prove that murder

was wrong simply did not work. It is frustrating as a judge to have a

feeling that there is more to a case, but being helpless to act because as

an appellate judge you are bound by the record on appeal.

It is our obligation as defense counsel at the trial level to avoid the

death penalty by giving the judge a good mitigation case that includes

valid reasons why the defendant should not be put to death. In fact,

every lawyer in Alabama must understand that the politics of capital

punishment are such that in most cases the only way to avoid the death

penalty is by thoroughly investigating the client’s life story, and

presenting the judge and the jury with an affirmative case for a life

sentence. We have to give the trial jury a reason not to impose the death

penalty and the trial judge a reason not to override the jury’s decision of

life.

Politics aside, trial and appellate judges are human just like the rest

of us. If mitigation evidence in the record raises real questions about

whether the defendant truly deserves the death penalty, it becomes a lot

easier to find error. Indeed, I can recall cases in my career on the bench

in which the evidence of insanity was so overwhelming that the Court of

Criminal Appeals took the highly unusual step of reversing the verdict of

the jury based on overwhelming evidence of legal insanity at the time of

the crime.

If, for whatever reason, I was convinced that this man or

woman did not deserve the death penalty, then the prejudice from trial

error became more obvious.

It is critically important at all levels in

REV. 319, 413 (1997); see also Ala. Dep’t of Corr., Inmates Executed in Alabama,

http://www.doc.state.al.us/execution.asp (last visited Mar. 24, 2008).

19. Hopper v. Evans, 456 U.S. 605, 609-10 (1982).

20. See Anthony G. Amsterdam, The Supreme Court and Capital Punishment, H

UM. RTS.,

Winter 1987, at 14, 59 n.46; Final Judgment; Alabama Executes a Murderer, T

IME, May 2, 1983, at

24.

21. See, e.g., Dixon v. State, 668 So. 2d 65, 72-73 (Ala. Crim. App. 1994).

22. This is merely a variant of the rule of Chapman v. California, 386 U.S. 18, 22 (1967), that

810 HOFSTRA LAW REVIEW [Vol. 36:805

capital litigation to present all the information to the judge that the

attorney can uncover to portray the defendant as a human being.

One case that illustrates this point is that of Judith Ann Neelley,

who was convicted of the murder of a young girl who was tortured, shot,

and thrown off a cliff.

The defense presented substantial mitigation at

trial, including evidence that Neelley was the victim of brutal domestic

violence by her husband, who the defense alleged was primarily

responsible for the crime. I remember her attorney breaking down into

tears at the oral argument on appeal. Although I (the court) affirmed her

conviction and sentence of death,

I struggled with the decision and

spent extra effort to make sure that I was right. The post-conviction

attorneys continued to pursue mitigating evidence, building on what was

presented at trial. They developed persuasive evidence that she had

experienced horrible things that were similar to the acts that had been

committed against the victim of her crimes. In addition, they were able

to portray her as a person who found redemption on death row.

The

defense team helped her to communicate the depth of her remorse, and

eventually persuaded Governor Fob James to commute her sentence to

life.

Another case that sticks in my mind is that of Walter McMillian.

sat on the court that affirmed his death sentence on appeal. At the time, I

felt absolutely certain that he was guilty of the crime. Later, however,

thanks to the investigation conducted by Bryan Stevenson of the Equal

Justice Initiative, evidence was presented proving that McMillian was

completely innocent and could not have committed the crime.

His

conviction for the murder of a young woman had been predicated mainly

on witnesses’ fabricated statements obtained through coercive police

interrogations. Although the jury recommended a life sentence, trial

judge Robert E. Lee Key, Jr., overrode the jury’s decision and imposed

the death penalty.

McMillian’s trial lawyers did little if any

“[i]n fashioning a harmless-constitutional-error rule, we must recognize that harmless-error rules

can work very unfair and mischievous results when, for example, highly important and persuasive

evidence, or argument, though legally forbidden, finds its way into a trial in which the question of

guilt or innocence is a close one.”

23. Neelley v. State, 494 So. 2d 669 (Ala. Crim. App. 1985), aff’d, Ex parte Neelley, 494 So.

2d 697, 705 (Ala. 1986).

24. Id. at 670-71.

25. Id. at 682.

26. See Alabama Leader Spares Condemned Woman, N.Y.

TIMES, Jan. 16, 1999, at A18.

27. See id; Outgoing Gov. James of Alabama Commutes Woman’s Death Sentence, L.A.

TIMES, Jan. 17, 1999, at A12.

28. McMillian v. State, 594 So. 2d 1253, 1285 (Ala. Crim. App. 1991).

29. See Barrett, supra note 13, at 38-39.

30. McMillian, 594 So. 2d at 1273; see also Barrett, supra note 13, at 38.

2008] APPELLATE JUDGE’S PERSPECTIVE 811

investigation into the facts of the case, so all I had before me was the

government’s evidence and the government’s theory of the case.

Stevenson’s investigation established, however, that not only had the

prosecution presented false evidence to convict him, but that it was

nearly impossible for McMillian to have committed the crime.

I am

now as certain of his innocence as I had been earlier of his guilt. There

have been several cases like McMillian’s in Alabama, where witnesses

lied, evidence was manufactured, or where DNA proved the defendant

innocent in spite of eyewitness testimony.

To realize that even one

innocent person has been put on death row is shocking. How could that

happen in America? I do not rest easy knowing that in every case in

which I, as an appellate judge, affirmed a sentence of death, I had the

same level of certainty about guilt as I had when I affirmed McMillian’s

conviction and sentence.

During my eighteen years as a Court of Criminal Appeals judge,

my views on the death penalty evolved. One thing that never changed,

however, is my appreciation for the fact that defense counsel must

present all available mitigating evidence in order to enable appellate

courts to make reliable decisions in capital cases.

By failing to

thoroughly investigate, develop, and present mitigating evidence,

counsel “creates the risk that the death penalty will be imposed in spite

of factors which may call for a less severe penalty.”

It is therefore

“essential . . . that the [court] have before it all possible relevant

information about the individual defendant whose fate it must

determine.”

In all of these cases, we are dealing with an individual who

has a mother, a father, and a story to tell that reveals his or her basic

humanity, and who must have a chance for redemption. The only way

we can show that is through mitigation. It is a disservice to the entire

31. See Barrett, supra note 13, at 38-39.

32. For details of prisoners exonerated from Alabama’s death row, in addition to McMillian,

see Cochran v. Herring, 43 F.3d 1404, 1405 (11th Cir. 1995) (James “Bo” Cochran); Ex parte

Drinkard, 777 So. 2d 295, 296 (Ala. 2000) (Gary Drinkard); Quick v. State, 825 So. 2d 246, 262

(Ala. Crim. App. 2001) (Wesley Quick); Padgett v. State, 668 So. 2d 78, 83 (Ala. Crim. App. 1995)

(Randall Padgett).

33. I am reminded of Bryan Stevenson’s comment after winning the freedom of his innocent

client, former Alabama death row inmate Walter McMillian: “It was too easy for the state to convict

someone for that crime and then have him sentenced to death. And it was too hard in light of the

evidence of his innocence to show this court that he should never have been here in the first place.”

Man Freed After Spending Six Years on Alabama’s Death Row, D

ALLAS MORNING NEWS, Mar. 3,

1993, at 6A.

34. See Goodpaster, supra note 16, at 318.

35. Lockett v. Ohio, 438 U.S. 586, 605 (1978).

36. Jurek v. Texas, 428 U.S. 262, 276 (1976), overruled by Abdul-Kabir v. Quarterman, 127

S. Ct. 1654, 1671 (2007).

812 HOFSTRA LAW REVIEW [Vol. 36:805

system—judges, jurors, the public, and victims of crime—to impose and

carry out death sentences without a thorough investigation, as described

in the Supplementary Guidelines.

I left the Court of Appeals in 1995 and returned to the practice of

law. My first experience with the death penalty as a defense attorney

was the case of Eric Rudolph, who was accused of a series of bombings

in Georgia and Alabama that included nightclubs, abortion clinics, and

the 1996 Olympic bombing in Atlanta.

Off-duty police officer Robert

Sanderson was killed in the bombing of a Birmingham family planning

clinic, and forty-four-year-old Alice Hawthorne died in the blast at the

Atlanta Olympics. More than 120 others were injured in the bombings.

I had been in my office in downtown Birmingham when the bomb that

killed Officer Sanderson exploded. From there I could see the cloud of

smoke caused by the explosion.

Two days after Rudolph’s arrest, a federal judge called me out of

the blue and asked if I would be willing to defend Rudolph. Although I

had never before defended a capital case, I agreed to join the defense

team, which at that time had not been selected by the judge. That team

eventually included attorneys Judy Clarke and Michael Burt and

mitigation specialist Scharlette Holdman.

Working with Clarke and

Burt was a privilege and an education in and of itself.

The first time I met Scharlette Holdman was at a meeting of the

defense team, which at that time did not include Clarke and Burt.

Because this was my first capital case, I had never worked with a

mitigation specialist before, so I did not know what to expect. When she

started talking, I knew that she knew what we were supposed to be

doing. I thought to myself, “Thank God, we have some direction.” After

that meeting, I talked to Scharlette almost every day.

As the case went on, we learned a great deal, not just about the facts

of the case, but also about the story behind the facts and why things

occurred, and to a degree why Eric was the way he was. The

Supplementary Guidelines are practically a blueprint for how the

defense team functioned for Eric Rudolph. We had a defense team that

included “no fewer than two attorneys qualified in accordance with ABA

37. See SUPPLEMENTARY GUIDELINES, supra note 1, at Introduction.

38. See Jeffrey Gettleman & David M. Halbfinger, Suspect in ’96 Olympic Bombing and 3

Other Attacks Is Caught, N.Y.

TIMES, June 1, 2003, at A1.

39. See Don Plummer & Cameron McWhirter, Rudolph Cuts Deal: Olympic Bombing Suspect

to Plead Guilty, A

TLANTA J.-CONST., Apr. 9, 2005, at A1; Gettleman & Halbfinger, supra note 38,

at A1.

40. See Scharlette Holdman & Christopher Seeds, Cultural Competency in Capital

Mitigation, 36 H

OFSTRA L. REV. 883 (2008).

2008] APPELLATE JUDGE’S PERSPECTIVE 813

Guideline 5.1, an investigator, and a mitigation specialist.”

Being new

to capital defense, I could not have had better teachers than Michael

Burt, Judy Clarke, and Scharlette Holdman. Based on that experience, I

do not see how in the world you could have a death penalty defense team

without a mitigating specialist as an integral member. The mitigation

specialist is the glue that holds everything together.

The Supplementary Guidelines provide that the defense team “must

be able to establish rapport with witnesses, the client, the client’s family

and significant others that will be sufficient to overcome barriers those

individuals may have against the disclosure of sensitive information and

to assist the client with the emotional impact of such disclosures.”

This

is easier said than done. Anyone facing the death penalty is frightened

and distrustful of lawyers chosen by the court to present her defense. It is

unreasonable to expect anyone in Eric’s stressful circumstances to trust

an attorney he had just met. Probably the most important thing that the

mitigation specialist taught us was how to communicate with Eric. We

had to build a bond of trust, which is not easy to do under the worst of

circumstances in a jail cell. She accompanied Judy and me to visit Eric;

she knew exactly what to say and how to say it, and when to confront

him and when to back off. We sincerely wanted to help Eric, but the

mitigation specialist helped us understand that we couldn’t expect Eric

to believe that unless we demonstrated our level of commitment. That

insight was invaluable. I had never thought of that as mitigation, but

getting your client to trust you, at least to some degree, is perhaps the

most important function of the defense team.

The same is true with respect to witnesses; it was important to build

rapport with Eric’s family and people who knew him. The mitigation

specialist would interview witnesses and family members, and before we

knew it, she would be having dinner with the family and learning

information that was so important because she knew how to talk to

people. That is an art and a science overlooked by many attorneys

because we are too busy drafting motions, preparing for trial, learning

the facts, and getting our strategies down.

The Supplementary Guidelines also call for team members to

“conduct in-person, face-to-face, one-on-one interviews with the client,

the client’s family, and other witnesses who are familiar with the client’s

life, history, or family history or who would support a sentence less than

death.”

In addition, they acknowledge that “[m]ultiple interviews will

41. ABA GUIDELINES, supra note 5, at Guideline 4.1(A)(1). Because this was my first death

penalty case, I was not one of the lawyers who was “qualified under Guideline 5.1.”

42. S

UPPLEMENTARY GUIDELINES, supra note 1, at Guideline 5.1(C).

43. Id. at Guideline 10.11(C).

814 HOFSTRA LAW REVIEW [Vol. 36:805

be necessary to establish trust, elicit sensitive information and conduct a

thorough and reliable life-history investigation.”

No defense counsel

should consider himself the “face of the case” and the only person to

deal with the family.

In keeping with the standard, the defense team visited Eric almost

daily. After our visits with Eric, we would return to the office and

discuss with the rest of the defense team what we had learned so Eric

would know that this was a team effort. This also helped the team follow

up on Eric’s questions or concerns and helped to guide the defense

investigation. Our frequent visits helped us get to know who Eric

Rudolph was, which was a tremendous part of the case.

I also witnessed first-hand what it meant to conduct “culturally

competent”

interviews with witnesses and with my client. There were

times when I would come away from an interview with a witness, and I

would jump to conclusions that were judgmental. I remember walking

away from a witness and just shaking my head and saying, “Oh, that was

awful,” or “What a jerk!” The mitigation specialist would say, “Well,

Bill, you have to remember this person suffered this,” or, “This person’s

dealing with that,” or, “Poor thing.” She showed me the other side of the

coin. Then I felt like a total dunce. It was incredible to work as part of a

team that was so in tune with the human side of the equation. I learned to

compassionately and professionally look for cultural, scientific, or

medical explanations for what we had seen and heard, and we discussed

how to explore those theories.

This approach to representing our client eventually helped us

overcome the barriers to disclosure of mitigating evidence. Because the

case ended in a negotiated plea,

much of the mitigating evidence that

we developed remains privileged and confidential. By learning and

understanding Eric’s background and upbringing, we came to

understand Eric as a man and as a person, a relationship that was

essential to the ultimate resolution of the case, and that would have been

essential to presentation of a defense at trial. It helped me to be

personally involved with our client, to know him as best I could, rather

than treating him as an object or just somebody I represented. It allowed

me to work harder and longer, and actually have more passion for my

case. To know that Eric Rudolph is an individual and not just the man

who committed these horrible acts is to have compassion and

appreciation for him as a human being. In getting to know Eric, I learned

44. Id.; see also Holdman & Seeds, supra note 40, at 904.

45. S

UPPLEMENTARY GUIDELINES, supra note 1, at Guideline 5.1(C).

46. Dan Eggen, Rudolph to Plead Guilty to Bombings, W

ASH. POST, Apr. 9, 2005, at A1.

2008] APPELLATE JUDGE’S PERSPECTIVE 815

a lot from him. He is compassionate. He has a great sense of humor. Eric

is not the monster many believe him to be. He is an intelligent young

man who reads philosophy and history. The goal of the mitigation

investigation we were conducting was to eventually get the jury to see

Eric as we saw him.

The ability to understand our client affected everything we did for

him. We learned that we could not separate mitigation from the

determination of guilt or innocence. The more work we did, the more we

were able to go into Eric’s background, the more that influenced the

direction of the investigation in the factual part of the case. We were

able to improve Eric’s chances of avoiding execution by acting in the

spirit of the Supplementary Guidelines, which provide that “the

development and presentation of mitigation evidence must be

incorporated into the defense case at all stages of the proceedings from

the moment the client is taken into custody.”

All of the work that the defense team was doing for and with Eric

created an opportunity for him to settle his case without the multiple

trials in multiple jurisdictions. Our relationship with Eric enabled him to

be an active member of the team whose input was highly valued and

respected. Eric was able to accept a sentence of life without parole,

without compromising his core beliefs.

Through the mitigation

function, Eric’s defense team was able to arrive at a settlement that not

only avoided the death penalty, but also provided finality to the victims

and served the best interests of the public.

My experience in the Rudolph case has made me a real convert. I

cannot imagine being involved in a capital case without the assistance of

a mitigation specialist as a member of the team. Even in the most terrible

crimes, a proper mitigation investigation could move a jury to life, just

as the Supreme Court suggested in Williams v. Taylor,

Wiggins v.

Smith,

and Rompilla v. Beard.

Since Rudolph, I have represented

several defendants in capital cases. A mitigation specialist has always

been on the defense team. There are very good mitigation specialists in

Alabama who perform in accordance with the standards described in the

Supplementary Guidelines. I have learned that in all of these cases, we

are dealing with an individual who has a story to tell that reveals him or

her as a human being capable of finding redemption. If we can make this

monster that we call the defendant human, people will not want to

47. SUPPLEMENTARY GUIDELINES, supra note 1, at Introduction.

48. Plummer & McWhirter, supra note 39, at A1.

49. 529 U.S. 362, 398 (2000).

50. 539 U.S. 510, 536-37 (2003).

51. 545 U.S. 374, 393 (2005).

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execute him, even if they are in favor of the death penalty. But we have

to make our client human, and the only way we can do that is through

mitigation.

At first blush, the amount of time we spent with Eric may seem like

an extraordinary cost. In the long run, it was the only way to build a

trusting attorney-client relationship that allowed Eric to make decisions

in his best interests. Further, our relationship with Eric was crucial to

resolving the case in a manner that allowed the government to save the

millions of dollars that would have been expended in as many as four

death penalty trials. Compared to those costs, the amount of time

invested in getting to know our client and earning his trust was relatively

inexpensive.

Working with mitigation specialists has also taught me that the

licensed criminal case investigators we use cannot fulfill the mitigation

function, and certainly can’t do both jobs in the same case. The trained

investigator, the retired FBI agent, the retired police officer, the retired

parole officer cannot do mitigation work because mitigation is so much

more than just finding facts. They can go up to a stranger at his house

and talk to him and get his opinions and facts, but good mitigation

specialists can come away and tell you so much more. They observe so

much more. They take in so much more than an investigator whose

approach may only be, “Just tell me the facts.”

A mental health expert is also not an adequate substitute for a

mitigation specialist. For one, I do not think they would drop in on

families, or track down and interview witnesses. Second, the specialty is

not broad enough; the psychologist’s or psychiatrist’s field of expertise

is too narrow. You need somebody with a much broader field who gets

involved deeply in the defense case. In Rudolph’s case, we never had a

defense team meeting without the mitigation specialist present. You

could not do that with a forensic psychologist whom you intend to put

on the witness stand. Discovery rules would make him a mole for the

52. A committee of federal judges headed by Hon. James R. Spencer studying the costs in

capital cases found that “[c]onferences with the client comprised 9% of attorney hours, reflecting

the time required to establish and sustain a professional relationship in a federal death penalty case.”

UBCOMM. ON FED. DEATH PENALTY CASES, JUD. CONF. COMM. ON DEFENDER SERV., FEDERAL

DEATH PENALTY CASES: RECOMMENDATIONS CONCERNING THE COST AND QUALITY OF DEFENSE

REPRESENTATION Part I.B.4.c (1998), available at http://www.uscourts.gov/dpenalty/

4REPORT.htm. The Spencer Committee found that “consultation with the client is vastly more time

consuming and demanding in a death penalty case” because “the nature of the penalty phase inquiry

requires a relationship which encourages the client to disclose his or her most closely guarded life

history with the lawyer,” and also because a high level of trust is “vitally important if the lawyer is

to convince the defendant to consider an offer to plead guilty, especially because what is offered is

likely to be life imprisonment without the possibility of parole.” Id. at Part I.B.4.a.

2008] APPELLATE JUDGE’S PERSPECTIVE 817

other side.

The Supplementary Guidelines are a great tool for the defense bar

to demonstrate to judges the need to fund competent mitigation work,

just as the ABA Guidelines have helped defense counsel. It helps to have

something formal, in writing, which is tied to the national standard so

that judges understand that if the defense team is not performing on this

level, we are incompetent. Without a mitigation specialist, I would feel

incompetent, not because I want to be, but because I cannot do an

adequate job without one. It is also important to assert the defendant’s

right to make an ex parte showing of the need for a mitigation specialist

and to return to the court for additional funding for him or her whenever

it becomes necessary. In my experience, even conservative judges

become believers when they see the work product that the defense team

produces with the assistance of the mitigation specialist.

My experience has given me only the highest personal and

professional respect for those attorneys, mitigation specialists, and

investigators who defend capital cases. I was privileged to work with

some of the very best—Clarke, Burt, and Holdman. Yet some of the

most dedicated and talented death penalty defense attorneys and

advocates are found in Alabama, my home state. Through different paths

we each seek to arrive at the same end of saving our clients from death.

The mitigation specialist is an essential part of that journey.

More generally, the full presentation of the mitigation case serves

interests that go beyond those of the defendant. Just as the ABA

Guidelines themselves are premised on the belief that the ultimate

beneficiary of the effective performance of capital defense counsel is the

justice system itself,

so too do the Supplementary Guidelines advance

the proposition that the more is known about the defendant’s life the

more everyone involved—including prosecutors, judges, and family

members—can have confidence in the soundness with which they have

53. See FED. R. CRIM. P. 16(b)(1)(C) (“The defendant must, at the government’s request, give

to the government a written summary of any testimony that the defendant intends to use . . . as

evidence at trial . . . .”).

54. The ABA Guidelines state:

At every stage of the case, lead counsel is responsible, in the exercise of sound

professional judgment, for determining what resources are needed and for demanding

that the jurisdiction provide them. Because the defense should not be required to disclose

privileged communications or strategy to the prosecution in order to secure these

resources, it is counsel’s obligation to insist upon making such requests ex parte and in

camera.

ABA

GUIDELINES, supra note 5, at Guideline 10.4, commentary (footnotes omitted); see Ex parte

Moody, 684 So. 2d 114, 119-20 (Ala. 1996).

55. See Eric M. Freedman, The Revised ABA Guidelines and the Duties of Lawyers and

Judges in Capital Post-Conviction Proceedings, 5 J.

APP. PRAC. & PROC. 325, 332 (2003).

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discharged the heavy burdens they all bear.