The materials included here were selected from presentations given at various capital defense seminars across Louisiana in the decade from 1991 to 2001. They are presented in this form for the use of students or others trying to gain information about the use of expert witnesses in penalty phase mitigation. Warning: The computers of any prosecutors attempting to read these materials will be infected with a deadly virus, which may in turn result in a cardiac infection in the human operator. The result is that the operator becomes what is known in legal circles as a "bleeding heart."

Since the early 1980s the attorneys of Louisiana's Fifteenth Judicial District Public Defender Office--which serves the parishes of Lafayette, Acadia and Vermilion--have used expert witnesses to prepare for the penalty phase of first-degree murder trials. In ten years of employing experts in more than two dozen first-degree cases, IDO attorneys have worked with many different experts playing a variety of roles. The particular experts may change from case to case, and not all the roles are necessarily relevant to each case, but there has emerged a kind of standardized group of expert roles that would be filled in preparing the penalty-phase defense of a "typical" case.

These are the expert roles that would make up the mitigation team in such a case:

1. The social/family history expert. Normally either a Ph.D. sociologist or an MSW social worker. This expert gathers information about the defendant's family life, education, social history and work record by talking with family members, neighbors, teachers, friends, employers and co-workers. The expert testifies in court about the overall environment in which the defendant lived, with emphasis on those aspects that would explain violent behavior. He gives a summary of the defendant's life and highlights those events and patterns that the jury ought to be aware of in understanding why this first-degree murder was committed.

2. The psychologist. Normally a Ph.D. psychologist who has worked extensively with criminal offenders. The psychologist administers personality and IQ tests to the defendant as part of the pre-trial interview process. In court he describes the defendant's intelligence, personality traits and behavior patterns.

3. The medical doctor. Normally a neurologist who has conducted physical examinations of the defendant, with emphasis on the brain and nervous system. In court he testifies about abnormalities, such as brain damage, that have impaired the defendant's thought processes.

4. The substance abuse expert. Normally a board-certified social worker with particular expertise in treating alcohol and drug abuse. His appearance in court is geared toward explaining to the jury the effects of acute or chronic substance abuse, with a focus on his opinions about the relationship of this defendant's behavior and his history of substance abuse, based on written records and pre-trial interviews.

5. The prison expert. This would be a criminal justice professional or criminologist with a particular background in institutional corrections. This expert gathers information about the defendant's prior criminal record and behavior in confinement, as well as more general background information about the defendant's family, work record, education, interests and attitudes. In court he testifies about the defendant's adaptability to the prison environment as a long-term inmate, which for most defendants in Louisiana would mean natural life at Angola. He also describes the prison environment of Angola for the jury.

6. The investigator. The private investigator's job is to gather information needed by the other experts. This typically involves locating and interviewing witnesses that the experts may need to substantiate their testimony. While the investigator would not normally testify in court, he is helpful not only in screening information for the experts but also in identifying and evaluating the other non-expert witnesses who will be asked to testify during the penalty phase.

As the number of pending first-degree cases handled by IDO attorneys has climbed in recent years, the Office has devised procedures for managing its caseload to insure that the experts are well-informed of their assignments well in advance of the trial. The two senior IDO attorneys who coordinate death penalty cases handled by the office meet with the experts bi-monthly to review all pending cases. Any new cases not already assigned are discussed at these meetings and specific assignments are made. The preferred approach is for the social history expert, the prison expert and the investigator to begin work on the case as soon as possible after the defendant is charged. They interview the defendant and begin working up a witness list. Depending on what they learn, the other experts may be brought in immediately or within the next few months.

If the case is viewed as a serious death penalty case, the two assigned counsel will ordinarily meet with all the experts for a pre-trial discussion six months or so before trial. Findings and opinions to this point are discussed at length. The attorneys are informed, in particular, of any written records the experts may need court orders to acquire and review and of any important missing witnesses the experts have not been able to contact. When the case is within ten days or two weeks of trial, another such meeting is usually held to review the information gathered to this point and determine what evidence will be presented at trial. By this time the experts should be fully prepared to testify, lacking perhaps only such last minute steps as reviewing jail records up to the date the trial began. All that remains then is to see what happens in jury selection and the guilt phase of the trial, and to hope that this careful preparation for the penalty phase turns out to be totally unnecessary.

The corrections or prison expert is one of a group of expert witnesses who may be of benefit to the defense case in the penalty phase of a first degree murder trial. When the defendant has been convicted of first degree murder, and it is up to the jury to choose been the two possible sentences of death and life imprisonment without parole, defense counsel is allowed to present witnesses to show mitigating circumstances--reasons why this defendant deserves the life sentence rather than the death penalty.

Besides the usual witnesses who might be called in this phase--close family members, former employers and neighbors, and other character witnesses--many defense attorneys elect to use expert witnesses with particular areas of expertise pertinent to the defendant in this situation: a social worker or sociologist to discuss family background, a psychologist to discuss the defendant's intelligence and mental state, or a substance abuse expert to discuss the role alcohol or drug abuse may have played in the commission of the crime.

What role can the corrections expert play? His purpose is to describe to the jury in specific, concrete terms what a life sentence would mean to this defendant and why the defendant is deserving of a life sentence.

The first part of this task centers on the Louisiana State Penitentiary at Angola, the prison to which the great majority of lifers and other long-term inmates are sent. Most citizens of Louisiana (and most jurors) have never been there and have no idea of the reality of life at this institution.

The expert should first provide a description of Angola: its physical environment, the nature of daily life, the plainness of living conditions, the high degree of security inmates are under, and the different types of work inmates are assigned to do. The expert would emphasize that Angola is a "working prison," and that the majority of able-bodied inmates are assigned to productive labor.

This can be done verbally, in a narrative overview, or it can be done visually, as with documentary film or video footage, if this is available. The defense attorney would have to determine which would be more effective in reaching the jury: the expect's "talking pictures" or the "moving pictures" of the film. In either case, the idea is to give the jury the "big picture" of long-term imprisonment in Louisiana.

Once the background has been established, the expert would focus on the defendant, emphasizing those aspects of his background, life and personality that would be of value in the environment of the long-term prison. Among the aspects that could be emphasized would be:

1. The defendant's work record prior to confinement. The more stable and continuous this record, the more likely he will adapt successfully to an agricultural, working prison.

2. The defendant's conduct record while in confinement. This is some indicator of his ability to adapt to long-term confinement, particularly as it relates to his ability to get along with staff and other inmates.

3. The defendant's physical features and character. His age, physical presence, education and ability to practice self-control and discipline in a very tough social environment are important.

4. The defendant's interests and attitudes toward improvement. If he is involved with programs and shows promise of helping other inmates, he may be considered a better candidate for long-term confinement.

5. The defendant's conduct during any previous periods of confinement. If he earned trusty status and good-time credit, this can establish his ability to function normally in an institutional setting.

6. The defendant's family. Family visits and support can play a big part in keeping the defendant interested in the world outside of prison and reduce the chance that he will get totally absorbed into the prison culture.

The expert's opinion about the defendant's adaptation to long-term imprisonment will be based primarily on several interviews with the defendant, but it should also include interviews with jail staff--security and counseling-and a review of jail and prior criminal history records.

The expert's eventual conclusion should be that the defendant exemplifies enough redeeming qualities to consider him a force for good in the prison environment where he will spend perhaps the rest of his natural life.

If the defendant has a poor background outside of jail or prison, if he is constantly in trouble, in jail and out, if he can't hold a job, if he is a disagreeable, dangerous loner who attempts to exploit everyone who gets close to him, if even the people closest to him can't think of anything good to say about him, the defense attorney probably should not expect the corrections expert to find good things to say about him, either. In this situation, the defense attorney should probably not even call the expert to the stand: if he can't say anything positive, he shouldn't say anything at all.

No, not pride, covetousness, lust, anger, gluttony, envy and sloth, not those sins. Well, maybe pride, which is as likely to goeth before an attorney's fall (or destruction, as Proverbs originally said) as anyone else's. But all the rest, in the company of pride, are the seven deadly sins of theology, so-called because they result in spiritual death. What we are talking about are the seven deadly sins of the criminal defense attorney in misusing the mitigation team and thereby failing to keep the defendant from meeting possibly spiritual but most certainly physical death.

As defined elsewhere at greater length, the mitigation team is a group of expert witnesses who may offer their opinions about the defendant and his behavior at the penalty phase of the first-degree murder trial. If this team actually testifies in court, the defendant has already been convicted of first-degree murder: the only issue left is whether he gets the death penalty or life imprisonment. What are the sins of defense attorneys, either jointly or in the singular person of counsel assigned specifically to the penalty phase, that can sharply increase the likelihood of the defendant getting the death penalty? Here we enumerate the seven most deadly.

1. Delay. Too often the experts are brought into the case too late to do their work effectively. Many attorneys obviously believe, based on past experience, that cases will be resolved through plea negotiations. When they are not, and the real trial date looms, the experts may be turned to as a sort of last resort. The problem is, most of the potential experts are professionals working full-time at other jobs; they do not have the ability to drop everything else they are doing and concentrate on this defendant for two weeks. Even if they do try to concentrate their work in a brief period, there may be records they need to see and witnesses they need to contact that cannot be found in such a short time. One can imagine the jury's reaction when the expert on the stand is asked how many times he has seen the defendant and how long ago, and he responds, "Once, last week." Would you be impressed with the depth of this expert's opinions? There is good delay, when it benefits the defendant, but this is bad delay. The best time to invite experts into the case is early on, preferably as soon as possible after the defendant is indicted for first-degree murder. Don't wait until the trial is a certainty to seek out the members of the mitigation team.

2. Intimidation. As in letting the prosecutor and trial judge tell you how to organize your defense and assemble your witnesses. The prosecutor's intent is obvious. The trial judge wants to conduct the trial with a minimum of complication (such as that posed by outside experts), resents the interference of other professionals into the conduct of his business, and in his heart really longs for the simplicity of the old days, when defendants were taken directly from the courtroom to the gallows.

Both the prosecutor and the judge will do whatever they can to discourage you from making their job harder; because you will have to work with them on other ordinary criminal cases for years to come, there is a natural tendency to try to be accommodating.

When posed with this sort of dilemma, the defense attorney should ask himself two questions: "Will they respect me in the morning?"

"Will I respect myself in the morning?"

If the answer to both questions is either "Yes" or "I don't care, I need the work," then go ahead and handle the case the way they want you to.

3. Cheapness. To use the resources of a mitigation team in an ordinary first-degree murder trial in Louisiana will cost at least $15,000 to $30,000, perhaps more with defendants with very complicated histories. No court wants to use public funds to insure that some slimy killer gets a fair trial; urban courts are broke and rural courts have better things to spend their meager funds on. Experts should be paid what is reasonable and fair for their work, no matter what kind of case it is. Asking them to work for reduced fees (or no fees at all) is not the way to gain trust and cooperation. If you are not prepared to do battle with the court to get the experts fairly paid, you should not ask the experts to come to your aid. They are probably busy enough without you adding to their suffering.

4. Disorganization. Assuming that you have overcome other obstacles and put together a mitigation team to prepare for the penalty phase, don't assume that each of them will do exactly what you want done within the time frame allowed. Get them together, tell them what you want them to do, hold meetings--either in person or through conference calls--to discuss the work they have done on the case. Keep them informed of developments in the case and hearing dates. If you can't organize their work yourself or don't have the time or disposition for it, have someone else do it--either one of your legal assistants or possibly a member of the mitigation team itself, if he has the legal background to understand the work that other members of the team are doing and how the pieces of work fit together to make a whole defense of mitigation. Someone has to keep the team working together, sharing information and moving in the direction of testifying at trial.

5. Inaccessibility. Closely related to the notion of keeping the team organized is the idea of remaining available to meet with individual members of the team to discuss what they have learned. Some of the team members will probably spend much more time in direct conversation with the defendant and with other key and incidental witnesses than the defense attorney will. Much of what they learn can be conveyed in telephone conversations or in direct meetings, if the defense attorney will take the time to meet and talk. In preparing to testify about their own areas of expertise, the experts develop much raw information that touches on other aspects of the trial--both the guilt phase and the penalty phase. Defense counsel's willingness to listen to objective, analytical experts (who may have worked on many more death penalty cases than the attorney has) can contribute mightily to developing that general view of the criminal and the crime from which the best defense emerges.

6. Inattention. This sin can be divided into two parts. First, it has to do with paying attention to details. If the experts ask for specific materials, such as written records pertaining to the defendant's education, work, criminal history, substance abuse, hospitalization, or anything else germane to past and present behavior, defense counsel should obtain these. Very often court orders will be required; a legal order can get these materials more completely and more quickly than a lot of informal working behind the scenes. Experts have to meet with defendants and witnesses that they don't know; sometimes the people the experts see have no clear idea who these people are, or even whose side they are on. Telephone calls or letters of introduction can eliminate confusion and break down barriers to communication. Likewise, a letter to the jail warden listing the experts who are to have access to the defendant is also a help. The second part of this sin could also be called heedlessness, which has to do with paying attention to what you are told. If the defense attorney is not going to incorporate what the experts tell him into the defense, he doesn't need experts. If the experts tell him stuff that is silly, useless and counterproductive, then he should get different experts the next time and try to do better. Experts may often disagree on specific points, but they also may agree more often on the main issues. Defense counsel ought to pay attention to these points of agreement; they can often be used as the foundation of the mitigation defense.

7. Unpreparedness. This sin is the equivalent of lack of rehearsal, in preparation for a play. Defense counsel should go over the expert's testimony in advance, immediately before the trial, and anticipate difficulties that may arise. All experts are subject to cross-examination; their credentials or expertise can be attacked, and their opinions most certainly will be questioned by the prosecutor, who may be trying to prove aggravation just as vigorously as the defense attorney is trying to prove mitigation. This is not to suggest that experts should be coached to say only what defense counsel wants the jury to hear; it is to suggest that the expert and the attorney should go over the main points of the expert's opinion and make sure these are worked into an outline that gets these points on the record as testimony. There is no worse feeling than to leave the courtroom thinking of all the important things you were never asked to say; or there may be one worse feeling: leaving the courtroom knowing you've been totally discredited and made out to be a fool, because you never saw where the questioning might lead and prepared to deal with it in advance. Defense attorneys may have a much better sense of this than experts--particularly inexperienced experts--do, and they should take the time to anticipate these pitfalls before the expert takes the stand.

If you think this list is too negative, prepare your own list of the seven virtues of defense counsel and compare: what to do is often the flip side of what not to do.

As an expert who has worked with the defense on several first-degree murder cases, I have listed these questions for the consideration of defense attorneys who may be contemplating the use of one or more experts at trial. Before the attorney approaches the court to retain experts, or asks an expert to get involved in the case, the attorney would do well to ask:

1. Is there a perspective on the case I want to bring out that a lay witness--family, friend, employer, minister, teacher, neighbor--can't provide, that an expert can?

2. How does the expert's specific area of expertise match the needs of my case?

3. Does the expert I have in mind have a track record in capital cases?

4. What do people who have used this expert or seen him/her testify have to say?

5. Will this expert have trouble qualifying as an expert to the satisfaction of the court?

6. What is there in the expert's background or work that is subject to attack--that can make him/her appear to be a deranged, degenerate kook before he/she has ever said anything about the defendant to the jury?

7. What connection does the expert have to this case; that is, what would I want him/her to say that would benefit my case?

8. On cross examination, what can the expert say that will hurt my case?

9. How is the expert likely to be perceived by the jury that will hear the case?

10. Will I have time to meet at length with (or at least speak with) the expert before he/she begins work, after he/she has prepared for court, and before he/she testifies?

11. Does the expert have enough time to complete his/her work before the anticipated trial date?

12. Are the defendant and other defense witnesses aware that I am using the expert, and are they willing to cooperate?

13. What must I do to facilitate the expert's access to the defendant and other witnesses?

14. What documents will the expert need to look at, and what is the best way to obtain them?

15. How is the expert to communicate his/her findings to me; specifically, do I want the expert to submit a written report that the prosecution might examine?

16. Is there any way that my use of this expert will facilitate either 1) a plea bargain, or 2) reversible error?

17. How angry will the judge and prosecutor be at me for trying to use an expert, and how will their angry state affect my life and practice?

18. Should the expert testify in the penalty phase, or is there a legitimate way that he/she can testify in the guilt phase?

19. Can the expert prepare a list of questions or key points to be covered to guide my questioning in court?

20. How much money does the expert want, and how will I get it? (May be renumbered as Question 1.)

20+ Is it worth the trouble to use an expert?

20++ Do I intend to take seriously the expert's comments and advice?

In the past 15 years, we have worked as expert witnesses, together and separately, on well over 200 capital cases in all parts of Louisiana. While we like to think that we are good at what we do--that our work is beneficial to both counsel and capital defendant--we must in all fairness point out that of the 93 inmates on death row awaiting execution in Louisiana, we have worked on 30 of their cases in the pre-trial or trial stages.

Our perspective is that while one attorney can tell you his views on what went wrong in one particular case, we are in a better position to discuss what attorneys in common often fail to do in handling capital cases. We have seen what works and what doesn't work close up. We are mindful of the imperfections implicit in doing capital defense work, and we recognize that some attorneys would probably rank as their biggest mistake asking us to work with them ("Why did I ever call those two idiots from Lafayette?").

Thus we approach our topic with the words of St. Paul in Romans 3:23 in mind: "For all have sinned, and come short of the glory of God." To which we would add the following legal qualifier: "Only some fall far shorter than others." We hope our observations will be helpful in moving capital defense counsel closer to the mark. Here is our list of what to avoid in handling a death penalty case:

1. Waiting until the last minute.

2. Being certain of a guilty plea.

3. Ignoring the possibility of a guilty plea.

4. Rushing to trial.

5. Trying to do everything yourself.

6. Helping the prosecutor.

7. Overemphasizing creativity.

8. Failing to have a plan.

9. Neglecting to use your resources.

10. Expecting too much of experts.

11. Overlooking the participation of the defendant's family.

12. Failing to communicate.

13. Skimping on expenses.

14. Expecting the evidence to go your way.

15. Forgetting the penalty phase.

16. Presenting unprepared witnesses.

17. Questioning potential jurors superficially.

18. Avoiding the defendant.

19. Treating the defendant like an idiot.

20. Floundering for theories.

21. Relying too much on emotion.