Death penalty mitigation offers juries a chance to see defendants in a different light

by Maura Ewing, The Appeal

The odds were stacked against Ernesto Martinez. Last fall, he was on trial for a capital offense in a place that has distinguished itself as a leader in condemning people to death: Riverside, California, a populous county just south of Los Angeles. For two out of the past three years, juries there have handed down the highest number of death sentences in the country, with five last year. According to the Death Penalty Information Center’s annual report, Riverside and two other jurisdictions—Clark, Nevada and Maricopa, Arizona—together imposed over 30 percent of the country’s death sentences in 2017.

Just two months before a jury would decide his fate, Martinez said, nobody was working to make the argument that he should live. “Riverside County is handing out death sentences left and right,” he told The Appeal in a phone interview from prison. “It started to make sense as to why.”

It took over two decades for his case to wind into a Riverside courtroom. In 1995, when Martinez was 19, he allegedly killed a cop on the side of an Arizona highway, fled that scene, and then fatally shot a gas station clerk just over the California border. An Arizona court in Maricopa County condemned him to death in 1998. (That case is in habeas appeals.) Twelve years later, prosecutors in Riverside extradited him, even though, as the local Riverside county paper framed it in March 2017: “If Martinez is sentenced to death in California, Arizona will still get to kill him first.”

Across the country, the number of people given death sentences has fallen significantly in recent decades—from 295 in 1998 to just 39 last year. Experts attribute this decline to several factors, including the disturbing number of death row prisoners who have been found not guilty through advances in forensics, such as DNA evidence: At least 162 people on death row have been exonerated since 1973. “That has to have had a chilling effect on jurors’ willingness to impose a death sentence,” said Sean O’Brien, a law professor at the University of Missouri-Kansas City and a preeminent expert on capital defense.

And, simply put, capital defense has gotten much better. A series of U.S Supreme Court decisions since the 1970s has raised the bar for effective capital counsel. “Our prosecutors didn’t get nicer, juries didn’t change, and judges didn’t get better,” O’Brien said. “The one thing we’ve changed in Missouri is defense counsel, and it has made a huge difference.”

Chief among the improvements has been the advent of a field of professionals who develop non-legal arguments for why an individual’s life is worth saving. Mitigation specialists, as they are called, cull documents like medical and school records, building a multigenerational history of their clients that can stretch back to slavery. They talk with often-reluctant witnesses who have known defendants at different stages of their lives to reveal personal histories that often include substance use disorders, mental illness, and abuse. The goal is to create empathy, working on an underlying premise that no person is evil, though some are very damaged. O’Brien said a “significant” portion of his clients had witnessed a parent or sibling’s murder. “People tend to divide the world between murderers and victims,” he said. “That’s a completely inaccurate dichotomy.”

Jimmy Lohman, who has been a capital defense lawyer in Texas and Florida for nearly four decades, echoed that sentiment. “You cannot imagine how many death defendants were traumatized in their youth. That could range from being beaten and molested by your mother’s boyfriend to stepping over dead bodies in your housing project,” he said.

Martinez was an unusual defendant. He has an IQ higher than 90 percent of the population, according to court records, and he trained himself to be a competent litigator during the two-plus decades he has lived behind bars. Starting in 2011, he represented himself in the criminal trial in California and quickly realized he needed a mitigation specialist. A good one. Martinez’s high IQ and competence may have even made things harder since mitigation claims often hinge on a client having a low IQ or mental illness.

After taking over his own case, he fought to hire a mitigation specialist at a rate of $75 an hour, almost double the unusually low $42 an hour the court was originally willing to pay. “No competent mitigation specialist would work for that 20 years ago, much less today,” said Richard Burr, a lawyer in Houston who has worked on capital cases since 1979. The going rate is $75-$100, sometimes higher, according to several people in the field.

“I fortunately was smart enough that I didn’t lay down and let myself get killed,” Martinez said. Ultimately, he was granted the rate increase, but only three months before a jury would decide if he lived or died.

The ‘Angel of Death Row’

The art and science of mitigation investigation was born and refined in the “modern era” of capital punishment, as the years after the U.S. Supreme Court re-approved capital punishment in 1976 after a four-year hiatus are called. Starting then, courts were mandated to have two phases to a capital trial: the first to determine if a defendant is guilty of a capital-eligible charge, and a second “penalty phase,” in which the jury decides if he or she should be condemned.

Historically, defense attorneys had only gathered personal information about the defendant within the narrow bounds of what is relevant to either an insanity defense, or what is called a “mens rea” defense, meaning that the person did not plan the actions or intend their consequence. But the penalty phase, where nearly anything about a defendant’s biography is fair game, offered room for a far more robust defense.

Initially, that potential went unrealized, O’Brien said. “Lawyers stay with what they know, what they’re comfortable with.” As a result, he added, “In the first round of capital trial cases, there was a lot of neglect of the penalty phase.”

In the 1980s, a small, tight-knit community of death penalty opponents was disappointed with how lawyers were using the penalty phase, so they took up the work themselves. At the forefront of this push was Scharlette Holdman, an anthropologist by training and famously salty character who is credited with being the first mitigation specialist. She would become known as the “Angel of Death Row.” (Holdman died last summer at age 70.)

According to Lohman, the defense lawyer, the line of quality mitigation specialists can be traced directly to Holdman. “It’s almost like if you haven’t worked with Scharlette, you’re not really qualified,” he said, “or someone who was trained by her. She’s the source of all knowledge.”

Holdman had a troubled past herself. She grew up in an abusive household with a racist father. As a landlord, he described evicting his black tenants as “going niggering,” according to the journalist David Von Drehle, who profiled Holdman in his book Among the Lowest of the Dead. As a young woman, she threw herself into civil rights activism, running several chapters of the American Civil Liberties Union, and then focused her energies on the death penalty—a path that may have started as a rebellion against her father but became intrinsic to her character.

“As we in local communities began to look for mitigation, we saw it as presenting the narrative of someone’s life, and we became acutely aware that it was a very specialized, complex undertaking,” Holdman told The New Yorker in 2011. “It requires not just knowledge and skill but experience in how you search for, identify, locate, recognize, and preserve the information.”

Holly Jackson, who eventually became Martinez’s mitigation specialist, is based in Los Angeles and is a Holdman protégée. “She had the ability to build a rapport and trust within an hour because she had the life experiences, because she knew what people were going through in terms of poverty and abuse and cultural stigmas,” Jackson said. “She taught me that, that human part of it. That was the most important part. If you can’t get the witness to talk with you, to engage with you, then you’re not going to get the information you need and you’re not going to get anywhere.”

As Holdman and her peers developed mitigation investigation methods, capital defense attorneys were increasingly seeking that type of expertise. “They were two groups that were going to find each other eventually, no matter what,” O’Brien said. Over the years, the standards were refined and codified in the American Bar Association’s guidelines. Today, having a mitigation specialist on a capital case is considered a constitutional right, but securing one isn’t always easy, as Martinez’s situation illustrates.

The hunt for help

In July 2017, two months before the guilt phase of his trial was scheduled to begin, Martinez petitioned the court to delay. Despite years of trying to secure a mitigation specialist, he still did not have one. The first specialist, who was supposed to do both fact and mitigation investigation, was a no-show, he explained. “I went eight months and never met this investigator,” Martinez said. That man eventually took himself off the case. A second specialist joined the case but was removed two years later because of personal legal troubles, Martinez said. A fact investigator assigned to the case, Jerry Monahan, was told by the Indigent Defendants Office in Riverside that he couldn’t help with mitigation.

So, Martinez and Monahan set out to find mitigation specialists. A capital defense lawyer in Arizona who had been following his case closely, suggested Jackson, but she was unwilling to work for the rate they were paying. “Our community has a policy: We will not go for less than certain amount or it will ruin it for everyone,” Jackson said, in reference to pay.

The judge, Charles Koosed, was not moved. “There’s no right to a mitigation expert,” he claimed at the July hearing. “If you can convince the pay panel to give you money for it, that’s fantastic. More power to you. But I’m not going to argue with you about any of this.”

The ACLU’s Capital Punishment Project, which had been monitoring all the death penalty cases in Riverside and contacted Martinez directly, disputed Koosed’s claim a month later in a friend of the court brief. “There is an indisputable, constitutional right to an adequate mitigation investigation in capital cases. This Court’s failure to grant the continuance necessary to provide for such an investigation is constitutional error,” the brief reads. It cites several Supreme Court cases and quotes an opinion written by Justice Sandra Day O’Connor in 1978:

“If the sentencer is to make an individualized assessment of the appropriateness of the death penalty, evidence about the defendant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse.”

The brief also argued that Martinez should be provided the “funding needed to conduct a constitutionally adequate mitigation investigation.”

In the meantime, Martinez worked with yet another court-funded mitigation specialist. This one, too, didn’t work out.

It is unclear how Martinez eventually persuaded the judges to allot him a higher rate to pay for a better mitigation specialist. Jackson came on the case Oct. 10 at a rate of $75 an hour.

Around the same time, a defense lawyer, Richard Swanson, agreed to represent him during the penalty phase of his trial so he, Jackson, and the fact investigator, Monahan, set to work at breakneck speed—generally mitigation investigations take over a year, Jackson said. Martinez was convicted of murder on Dec. 4, 2017, and the penalty phase was to begin two months later.

“We worked day and night, the last couple of weeks,” Jackson said. “It was just really stressful.” One saving grace was that unlike most defendants, Martinez had been incarcerated for over 20 years—time that was both well-documented, and in his case, helped prove that he was a changed man.

The trial

During the eight days of emotional testimony, 17 witnesses revealed a portrait of a boy who was protective of those close to him but slowly devolved into a reckless teenager capable of murder after years of abuse and trauma.

Martinez grew up in a volatile home with a father who would verbally and physically abuse his children and their mother, family members testified at his trial. His mother used meth and heroin in the house when the kids were young, they said. Martinez was the second of four children and the oldest boy, and would try to physically intervene when their father was abusing their mother.

He spent a lot of time with his paternal grandmother who, a cousin explained, was one of the few adults in his life who didn’t struggle with alcohol or substance abuse. She made homemade tortillas for anyone who was around, and doted on her grandchildren. Another cousin described Martinez as his grandmother’s favorite; he would frequently retreat to the small house where she lived on the family’s property in Indio, California. She died from a stroke in 1985 when Martinez was 9 or 10. “He just closed up,” his cousin Barbara Garza told the jurors on the second day of testimonies.

Shortly after his grandmother’s death, Martinez’s family moved to a small town—Globe, Arizona. Here, both parents got sober and became devoted to attending a local Evangelical church. They took the children there five days a week. But while Martinez’s father put on a pious front at church, his sisters testified, he was still abusive and controlling at home.

In 1989, when Martinez was around 14, his best friend committed suicide. After that, “he was distant,” his younger brother Ramon Martinez said. Both figuratively and literally, “he wasn’t really around after that.”

On the seventh day of testimonies, his sister Julia Negrete took the stand and described her tumultuous relationship with her brother. In their elementary school years, they were allies, she said, trying to protect one another from abuse. But in junior high school, they took different paths and their relationship frayed. She escaped to her friends’ houses, and studied hard so she could move away—which she did when she was 17. Martinez acted out. He was in and out of juvenile hall. She couldn’t remember exactly when he left the house, “Sometimes he was there, sometimes he wasn’t. I couldn’t tell you when that happened—I didn’t track him. I didn’t care if he was there or not, to tell you the truth.”

It was important to hear testimony from his siblings, Jackson said, because they were the only people who could paint a picture of his past. “We really had to get [the jury] to know his post-traumatic stress from living in the shadow of chronic violence, so that they would understand how he would overreact,” she said.

Because his case was so prolonged, the jury could also consider Martinez’s time in prison, where he had spent over half his life. That did not universally work in his favor. In 2011, he was charged with stabbing his cellmate, but Martinez argued it was self-defense and was acquitted last December.

But the jury also learned about meaningful relationships he had formed over the years. Poignant testimony came from a 26-year-old, Michael Lopez, whose mother had briefly dated Martinez and who considered him a father figure. When Lopez was in junior high school, he began to accompany his mother when she visited Martinez in prison. Martinez talked Lopez through the aftermath of his parents’ ugly custody battle, Lopez testified, and his problems with his father.

“He’s always been supportive,” Lopez said. “He’s been instrumental in helping me to choose growth over [the] anger and bitterness that I felt in my early years.” Martinez sent him books to read, and through letters and during frequent visits, encouraged him to go to college, where he studied English literature.

After one day of deliberations, on March 1, the jury sentenced Martinez to life in prison rather than the death penalty. He later said he felt vindicated by the decision. “In Arizona, one person decided I should be executed—that I was not fit to live,” he said. “In California, 12 people decided I was.”

The Riverside County District Attorney’s Office declined to comment because Martinez’s criminal case is pending appeal.

That same month, Riverside County raised its standard mitigation specialist rate to $75 an hour “to bring reimbursements more in line with average rates in surrounding counties,” the court’s public information officer wrote in an email.

Soon after the trial, Jackson moved on to her next case. The states that have clung to the death penalty don’t seem to be changing course, so high-quality mitigation specialists remain in demand.

Lohman, the capital defense lawyer, considers them essential. “The proper way to do mitigation is that you go back as many generations as you can in a person’s life, as far back as you can go, and put together the definitive story of where this person came from,” he said. “If the trial team does their job correctly, you should never get a death sentence.”

This article by Maura Ewing was originally published June 6, 2018 on theappeal.org; reprinted with permission. Copyright, The Appeal, A project of Tides Advocacy

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