DEVELOPING EFFECTIVE

MITIGATION EVIDENCE
OR

OUT OF THE BOX AND

INTO THE CIRCLE
JAMES TIBENSKY
MITIGATION SPECIALIST
FEDERAL DEFENDER PROGRAM, CHICAGO
And the horrible thing . . . is simply that they
have got used to it. Strictly they do not see
the prisoner in the dock; all they see is the
usual man in the usual place. They do not
see the awful court of judgment; they only
see their own workshop.

G K Chesterton Tremendous Trifles

 What is Mitigation?
It’s the stuff that helps to tell your client’s story:

What it was like growing up as your client

What influenced him or her to become what they are

today

Why your client committed this offense

What she or he needs to do better in the future

 MITIGATION IS
The process through which we uncover the
necessary facts that allow us to effectively
tell our client’s story.
 MITIGATION IS NOT:

Only “the good stuff”

The opposite of aggravation

Turning a blind eye to negative factors

An attempt to fool anyone

RED
 Types of Questions
Closed: Was your childhood normal?

Open: What was your childhood like?

Leading: Were you abused as a child?

Closed and Leading: You weren’t abused as a child,

were you?

Open and Free: Tell me about your childhood.

 Sample Questions
What are your expectations of me?
What would you tell the judge if she or he were
here right now?
What do you think has caused you to be in this
situation?
What is your very first memory?
What do you think I would be surprised to know
about you?
How was affection shown in your family?
What else should I have asked you?
Have compassion for everyone you meet,
even if they don’t want it.

What appears bad manners, an ill temper or

cynicism is always a sign of things no ear has
heard, no eyes have seen.

You do not know what wars are going on

down there where the spirit meets the bone.
Miller Williams from “The Way We Touch”
 Start With Your Client
Be sure to get the facts

Data: date of birth, education, job history

Medical: all injuries (especially head injuries), illnesses,

hospitalizations, any medications ever taken, any physical
complaints now

Move on to sensitive stuff later

Mental Health: any treatment, medications, any thoughts

that he or she may not be like other people or that their
brain doesn’t work right
 Ask About the Family
Find an interested contact person and use them to introduce
you to everyone else

A great question for family is “If I had never met your son
(nephew, brother, etc.), what kind of person would I be
meeting?”

Ask to see anything they might have about your client or the
family, such as school records, photos, scrapbooks,
diplomas, trophies, the stuff mothers might put on the
refrigerator

Cross check the information with other family members

 Remember the Community
School Records
Contacts With Social Service Agencies
Employment
Hospitals and Medical Practitioners
Courts and Law Enforcement Agencies
Marriage and/or Divorce Records
Religious Organizations and Clerics
 Research
Know where to find research information.

Merck Manual of Diagnosis at

www.merckcom/mmpe/index.html

Medication Descriptions at
www.nlm.nih.gov/medlineplus/druginformati
on.html
 Research
National Institute on Drug Abuse at
www.nida.nih.gov/

National Institute of Mental Health at

www.nimh.nih.gov/

DSM IV Descriptions at
http://www.behavenet.com/capsules/disord
ers/dsm4TRclassification.htm
 Research
There are informative websites on any
condition your client may have –

PTSD, Fetal Alcohol Syndrome, Co-Morbid

Drug and Alcohol Abuse, Bi-Polar Disorder,
Schizophrenia, Mental Retardation,
Domestic Violence Victim.
 Use Government Resources
One of the best sources to use is the US
Department of Justice. For example:

The “Myths and Facts About Sex Offenders” at

http://www.csom.org/pubs/mythsfacts.html

Myth: "Most sex offenders reoffend."

Fact:
Reconviction data suggest that this is not the case.
Further, reoffense rates vary among different types of sex
offenders and are related to specific characteristics of the
offender and the offense.
 Experts

An expert, such as a psychologist or

psychiatrist, cannot give a good
report without background facts.
Have your client’s life story
available before the examination
begins.
 Mental Health Experts
A great resource for anything to do with
mental illness is the Kentucky Department
of Public Advocacy’s manual at:
http://dpa.ky.gov/library/manuals/MentalHe
althManual.pdf which includes a thorough
discussion of using mental health experts.
 Don’t Forget the PSR
When possible, refer to the PSR as
another source of verification for your
facts.

Show the judge that you know your

client better than the Probation Officer
or the AUSA
 Exercise
Find a person you do not know well

Tell him/her about yourself, have her/him do the

same with you

Take two minutes each

Be ready to introduce your partner to the audience

Get Ready to Tell Your Client’s Story
Brainstorm with someone else the facts that
work

Find one or two central themes

Build with facts and legal arguments

Weave them into a story

“I would ask you to remember only this one
thing,” said Badger. “The stories people tell
have a way of taking care of them.
Sometimes a person needs a story more
than food to stay alive. That is why we put
stories in each other’s memory. This is how
people care for themselves.“

From Crow and Weasel by Barry Lopez

 Tell It!
Be sure to have the facts

Photos, videos, live witnesses help bring

the story to life

Be sure to use the research and any

facts brought forth by your experts
 Better Sentences
BOP doesn’t serve everyone who needs mental health
treatment. http://www.ojp.usdoj.gov/bjs/pub/pdf/mhppji.pdf

Rehabilitation has started, don’t interrupt it now.

Clients who had a single counselor throughout the entire course of

treatment did significantly better than their peers who were
transferred from one counselor to another, suggesting that a stable
client - therapist relationship greatly enhances the chances of the
patient reaching drug abstinence and being rehabilitated.
www.ncbi.nlm.nih.gov/entrez/query.fcgi?cmd=Retrieve&db=PubMed&list_
uids=7399753&dopt=Abstract
 Better Sentences
Use the spirit of Guideline 5C1.1 Application Note 6:

6. There may be cases in which a departure from the

guidelines by substitution of a longer period of community
confinement than otherwise authorized for an equivalent
number of months of imprisonment is warranted to
accomplish a specific treatment purpose (e.g., substitution of
twelve months in an approved residential drug treatment
program for twelve months of imprisonment). Such a
substitution should be considered only in cases where the
defendant’s criminality is related to the treatment problem to
be addressed and there is a reasonable likelihood that
successful completion of the treatment program will
eliminate that problem.
 WHAT YOUR MITIGATION SPECIALIST CAN DO FOR YOU
Give you a social history investigation Conduct a detailed investigation of each stage of the
client’s life, including the social, family and medical history in order to uncover possible
mitigating factors, to identify possible witnesses to support mitigation and assist the defense team
in preparing the case.

Prepare a sentencing or mitigation report This will give the judicial officer an alternative to
what the prosecution may be asking the judge to do. It will explain how the important factors in
the client’s life up to this point have contributed to the offense behavior. It will address the
defendant’s potential treatment or other needs and suggest ways in which these might be
incorporated into a sentence that solves the problem which the crime represents for both society
and the defendant. In contrast to a presentence investigation report, it will be client-based, not
crime-based. It will present a complete human being to the court.

Illustrate the defendant’s view of things By learning the client’s own view of his or her life,
how the client sees the world and how the client wishes to be portrayed to the court, the specialist
can tell the complete story to the court.

Keep an inventory of important information Such as an “Expert’s List” of professional

consultants who can examine clients for possible medical, psychological, substance use,
intelligence, cultural or other factors which may be mitigating. Keep a file of successful
sentencing motions.

Make referrals Pre-screen the defendant to identify mental health, substance abuse or other
factors which may require expert evaluation. Recommend appropriate experts. Make referrals
and set up appointments for the client to meet the expert. Submit background information to the
expert. Be knowledgeable about referral resources and community-based programs for the client,
such as drug or alcohol treatment, mental health treatment, financial assistance, housing, or child
care.

Brainstorm cases As part of the defense team, the mitigation specialist can present ideas from
the perspective of a person who is not a lawyer, but who understands what the lawyers need to do
and want to do for the client.

Be a liaison Act as a liaison between the lawyer and the defendant. The mitigation specialist
may make appointments with consultants. He or she should explain to the client what the client
should expect when meeting with the consultants, or when carrying out treatment or other plans
while the case is pending. Act as a liaison between the client and the probation office, even
attending pre-sentence investigation interviews. Act as a liaison between the client and Pretrial
Services. Act as a liaison between the lawyer and the defendant’s family. Act as a liaison
between the defendant and the defendant’s family. Contact victims, when possible. The
specialist will be sensitive to the victim’s concerns.
 WHAT YOU CAN DO FOR YOUR MITIGATION SPECIALIST
Get him or her into the case as soon as possible In order to do her or his best work, a
mitigation specialist must have enough time to complete all of the interviews, do the research,
gather the records, set up expert assessments and write the report. The interviews of the
defendant can begin at the moment the case is opened in your office.

Some of the best work is done in getting a reduced charge, or even deferred prosecution. Good
mitigating facts, well presented, can go a long way toward convincing a prosecutor (or his or her
supervisor) that your proposal should be considered.

Use the mitigation specialist for rules to show cause why probation or supervised release should
not be revoked. The same kind of information that works to reduce a sentence also works to
reduce other punishments.

Keep the mitigation specialist informed The mitigation specialist acts, in many ways, as a
consultant. Make them a full partner in the defense team. While the specialist will develop her
or his own theory of the mitigation of the case, knowing the theory of the defense and being a
part of its construction will keep them from going in a direction that may not be productive.
Likewise, having the whole defense team brainstorm the theory of mitigation will be helpful to
the advocate. Keep roles and responsibilities clear, understand what is expected of each team
member.

Even if you are not using the mitigation specialist on a particular case, let him or her know when
you have an expert or research or a source that has proved useful so that it can be added to the
advocate’s information base.

Prepare with the specialist for testimony The mitigation specialist is often called upon to
testify about the information or the conclusions in the sentencing or mitigation report. Practice
direct and cross examinations when possible. Be sure to help them anticipate what the
prosecutor will ask. [Usually the killer question is along the line of: “So everyone with this
background commits this offense?”]

Provide the mitigation specialist with resources In order to be most effective, the specialist
must have training in a wide range of skills: interviewing, report writing, diagnosis of psychiatric
disorders, diagnosis of substance abuse patterns, knowledge of various possible treatment
resources, knowledge of family systems, and much more.

The National Alliance of Sentencing Advocates and Mitigation Specialists, a section of the
National Legal Aid and Defender Association, is the only professional organization for the
industry. Skill-building workshops and the annual conference can provide valuable training.
The organization also has a mentoring program and a discussion group listserve. The web page
is at http://www.nlada.org/Defender/Defender_NASAMS

James Tibensky 312-621-8340 [email protected]

 SOME INTERVIEWING TIPS
Lawyer’s Edition

James Tibensky
Former Secretary of the Executive Committee, National Alliance of Sentencing Advocates
and Mitigation Specialists, National Legal Aid and Defenders Association

INTRODUCTION

These “tricks of the trade,” can give you an idea as to how a mitigation specialist might structure an
interview with one of your clients. You may even wish to use it as a guide for your own interviews
with your clients. Everything contained in this collection has been submitted by members of the
National Alliance of Sentencing Advocates and Mitigation Specialists, a section of the National
Legal Aid and Defenders Association. The focus, therefore, is on gathering information to assist the
defense team through contact with defendants, their families and other important people in the
defendants’ lives.

Gaining trust, uncovering the vital information, earning credibility and fashioning a coherent and
persuasive plan to present to the court or the jury are just a few of the tasks for the interviewer.

Examples given by sentencing advocates are in bold. They are not the author’s.

Any and all of this material may be used without permission, but please credit NASAMS as the
source.

INTERVIEWING PRACTICES

It is important that all the interviewer’s actions promote good communication.

It is unlikely that clients will trust the interviewer merely because they are told to or because the
interviewer has said “You can trust me” or “I respect you.” Trust and respect are earned by building
a relationship.

The interviewer must be “in the moment.” Thinking ahead to the next question will hamper the
ability to hear the answer being given.

A good listener allows silences.

Pretend that you have a very sore throat and can interrupt only when
absolutely necessary.

Attempt to empathize, to see the world through the client’s eyes, to understand the client’s feelings,
and to learn the client’s means of dealing with the world. A nice definition of empathy is:
“participating in the inner world of another while remaining yourself” (The Helping Interview by
 2

Alfred Benjamin, Houghton Mifflin Company, Boston, 1981, page 49).

Open questions work better than closed. “Were you abused as a child?” is closed, allowing a
simple, unrevealing answer. Even worse would be “You weren’t abused as a child, were you?”
which begs for a negative answer. “What was it like growing up in your family?” is an open
question that can produce a lot of information.

It is good to use indirect questions as well as direct ones. “What was it like growing up in your
family?” is a direct question. “Tell me about your childhood” is a less direct approach. It is not even
a question. It allows the client to feel more like someone who is having a conversation with
someone who is interested in them as a person. Indirect questions begin with words and phrases
such as “What” or “Tell me” or “I’d like to hear about . . . ” or “It must have been hard when . . . ”

Few things make a person more defensive than the word “why.”

CLIENT INTERVIEWS

Before you meet for the first time

When scheduling interviews, make sure you have time to accomplish your purpose. It is important
to remember that the client does not have a docket of cases. While waiting for the interview they
may have focused on certain concerns that will need to be addressed in order to ease their anxiety
and provide a meaningful forum for what needs to be accomplished later.

If you know in advance that your client is from another country, another culture, or has
characteristics (gender, disability, etc.) that might require a different approach, research of the issue
before the first meeting is important. For instance, men in many Middle Eastern countries are not
comfortable having women in positions of authority or power. They may resist being represented by
women in any capacity. People from countries that have oppressive criminal justice systems may
have trouble trusting anyone associated with our criminal justice system.

I once worked with a client from Nigeria who never trusted his public
defender or me. One reason he gave was that no one would be allowed to
visit him in prison without the permission of the “authorities.” Anyone
whom the “authorities” let into the prison must, therefore, be doing the
“authorities” bidding.

Clients with active emotional problems present a number of communication challenges. If a

diagnosis is known or suspected, consider consulting with a mental health professional for advice
about the best approach to use. Even in the absence of such background information, there are a
large number of defendants in the criminal justice system who suffer from emotional problems. It is
beyond the scope of this project to coach anyone through the process of identifying, and then dealing
 3

with the effects of psychiatric problems. Yet it becomes a critical skill for a sentencing advocate to
have, both for self-protection and for effectiveness in the work.

Physical Setting

When interviewing clients, especially at a correctional facility or county jail, it may be useful to
select a conference area where the client can be positioned with his or her back facing open areas. In
the course of the interview, you may touch on highly sensitive issues, such as loss or abuse. When
the emotional dam bursts, the client may be more inclined to talk out the incident in detail if the
emotions are shielded in some way from the correctional staff, inmates, or any other individuals who
happen to be in or around the area. Privacy is a very precious commodity in jail.

First Meeting

Attempt to understand the client’s state of mind at each interview. Very early in the process, ask the
client what is on his or her mind, whether it concerns the case, jail conditions or family matters.
Take the time to deal with whatever is revealed. It will make working together go more smoothly
and productively.

State the purpose of the interview, who you are, your role in the entire process, how you go about
doing what you do, what to expect, etc. Tell the client it will be your goal, in this interview, to
compile their complete life story. This will require learning everything about them whether or not
they think it might be significant. You may not use everything you learn, but you need to know
everything. A lot of clients are folks who have never been important to anyone in the world before.
Spending a lot of time getting to know them may make them feel important.

The tone of the interactions at the first meeting might be much more important than the
questions. The client finally has some quiet time with someone who is willing to pay close
attention to them. They are with someone who is inclined to believe them, to ask follow-up
questions, to keep the spotlight on them, and to be compassionate.

Model the behavior that is desired from the client, using descriptive words and talking about your
own feelings. Let the client know if your office accepts collect calls, has video conferencing, and the
possibility for discussions on evenings and weekends. Determine if the client has access to writing
utensils and paper, and go over other procedures and tools necessary for communications.

The first interview is the beginning of what may be a long relationship. It might be best to start by
asking for less threatening information first, such as date of birth and other identifiers, easing
gradually into the more difficult areas. Topics that are either sensitive (e.g., medical or mental
health), or need in-depth coverage (e.g., substance abuse problems and history), might be best
covered at later interviews.
 4

This is a description of one sentencing advocate’s first contact:

I SLOW DOWN.

I shake their hand.

I ask them how they are doing, if they have been well, if the food agrees
with them, if they have a cell mate they like.

I slow down a lot. I make a lot of eye contact. I respond to any questions
they ask. I tell them my role in the process.

Then I say that I am looking for three kinds of things, within the
larger frame of their whole life story:

1. All the wonderful, good things the client may have done in their life - from
childhood on. I tell them I will be following up, tracking down the players in
these stories, talking to their friends and family out there, coming back to the
client to check facts. I always give examples in the form of tiny little stories.

2. Hard Things: all the bad, tough, sad, painful things that have happened to
the client in their life - starting before they are born! (I give the example that
someone’s Mama may have been abusing substances while she was pregnant
with that person. This lets them know that I know such stuff exists.) I tell
them I will be using only what will help, but that we can’t know what will
help until we know the stories.

3. Diagnosable things like head injuries, etc. Here I talk about how lots
of things run in families, and give examples, including alcoholism, etc.

Then I try to get a beginning list of important family members, with phone
numbers, addresses if possible. Places to start - this always leads to the client
telling me stories about these people. I ask if he or she can call anyone to let
them know I am coming, and if so, when that call is likely to happen.
Depending on the connection, level of trust, I do release either signing that
day or the next - usually the next. (It is too businesslike for that first day.
The first day is almost sacred to me, like a slow dance, getting to see one
another carefully, warily on their part, but with hope, and with honor, trust,
truthfulness.) I usually read the release out loud, slowly, tracing along the
words, explaining the reasons for the various clauses, so they know for sure
what they are signing, and don’t feel tricked

I tell the client that I will be seeing him/her a lot, I ask about the pattern
 5

of his/her days, when is a good time to visit, set a firm date for the next
visit.

This all takes about three hours.

Another advocate takes a different approach:

At initial interviews, I begin by spending a half hour taking a detailed

family/social history. I've tried the open-ended question approach, but find
I'd rather do this after I've done my 30-40 minutes of history taking. If I
begin with an open-ended question then I may have to interrupt later to
find such relevant data as 1) are parents still alive? 2) what sort of work
history have you had? 3) when did you get divorced?

Stylistically, I see this as akin to beginning a painting by sketching in the

lines in pencil before adding the color, beginning with the objective reality
before adding the subjective.

Yet another:

When I begin my interview, I tell the client that my purpose is to give the
judge an opportunity to get to know them as an individual, even though
they will never share a conversation. I also tell them that I want the judge
to look at them as not just another court file number, or the sum total of
whatever crime for which they stand accused, but as a unique human being.

I then continue to explain that in order to accomplish that objective, I must

be able to make the judge hear, see, touch, taste, feel and smell all of the key
events that they are about to share with me. Thus, my questions, although
prying and personal at first blush, are actually designed to tell the client’s
story and highlight any mitigating factors that may be present. The
questions are not because I am snooping.

Ending the First Interview

It will probably be necessary to obtain certain relevant documents, such as medical, psychiatric or
educational records. The client will need to sign waivers. Explain what materials may be sought.
Go over the waivers with the client and have clients sign them.

Let the client know what you will probably want to learn in the next meeting, especially if there is
“homework” the client can do to help. This could include calling family members to let them know
that it is safe to talk to you, or having them begin to write a time line of important events in their life.
 6

My favorite question (usually at the end of an interview) is some variation on this: What
question(s) should I have asked you? or What did I forget to ask you?

Good Things to Remember for Any Interview

Pay attention to the physical setting and amount of, or lack of, privacy available.

At each interview, tell the client what topics will be covered.

Remember: understanding the client’s state of mind at each interview will make working together go
more smoothly and productively. Continually assess the client’s mood and level of interest.

Ask the client early in the interview what is on his or her mind.

Find out what makes the client tick. Discover what is important to the client. Learn how the client
feels about himself or herself.

When exploring an event, program, treatment, relationship, etc., with a client, ask them to tell you
about what they liked or disliked about it, or what they wished would continue in the next program,
event, relationship, treatment. Ask them what they wish they had revealed, or not revealed during
the experience.

Sometimes I'll use role play to help the client remember more. Also,
when appropriate, I'll ask the client to talk directly about our
relationship as well as about the style of how we communicate. This
oftentimes brings up their memories of the people in the client’s life
whom I might remind her or him about.

Don’t be afraid to let your personality and humanity show. Clients will often be put more at ease if
they are approached in a natural, compassionate, personable manner. Do practice your poker face,
though.

I once had a client who disclosed pervasive incest in the home and was
completely unaware that this wasn’t the norm for every family across
America. I think that the client could have suffered an emotional breakdown
to suddenly learn from my reactions that this was not the case.

Time Lines

Constructing a time line often helps clients who are having difficulties with dates and sequences.
Working on it with the client becomes a collaborative exercise. Time lines can be amazingly
clarifying for the client as they fit the pieces in together with the interviewer.
 7

Starting with recent events and working backwards can work out better than starting with childhood
and moving forward. Clients are sometimes not good historians of their own lives. Have them
describe where they were, what was going on in their lives, at each birthday or other favorite holiday.
Having a specific marker may help with recall. Ask about such things as: Who was there? What did
you eat? What presents did you get? How did you feel? Who wasn't there that should have been?
These questions are likely to generate other areas to explore. If there is not an event to remember,
explore the reasons for not celebrating events and the feelings of the client knowing that other people
did celebrate holidays.

Genograms (Family Trees)

Making a family tree often gives the client a very nonthreatening opportunity to reflect on his or her
family history without the interviewer having to ask anything directly.

A “participatory genogram” is good. I ask the client to help me draw a picture of their family.
As we draw, we talk about the relationships between family members and I either note this on
the diagram with appropriate lines, arrows, slashes and other symbols or else make a mental
note.

There are some useful computer programs for making genograms.

Developmental History, History in General

Other areas of the assessment process are those associated with a comprehensive developmental
history, i.e., the nature of the pregnancy, perinatal history, developmental milestones, family
relationships, early attachments to other people, capacity for relationships, and social skills. This
provides an opportunity to understand the early environmental context within which the client grew
up. You learn about the parents and their use of authority and discipline.

Here are some sample questions:

! What do you remember most about growing up?

! How are/was affection, tenderness, competition, aggression, love, sexuality, and lust expressed in
your family/household?

! When you were a child and really scared, where did you go to be safe? What was it that made you
really scared? What else did you do to be safe?

! What stories did you hear from your mom about her pregnancy with you?

! What was your earliest memory as a child? What is your earliest memory of your father/mother?
 8

! Who were your friends when growing up? How many friends did you have? How many did you
consider a “best friend?” What did you do together, where did you 'hang out'? What did your family
think about your friends? What did your friend's family think about you? Are you still in touch?

! When you were a kid, what were your dreams and hopes?

! What was an average day like for you? Let’s start first thing in the morning. You are about twelve
years old or so. Tell me everything that happened. (The client says “I got up, went to school, came
home, ate dinner and went to bed.” You ask for details: “what time did you usually get up?”
“Which way did you go to school?”)

! What is the worst thing that has ever happened to you? The best?

! Tell me about your neighbors.

! What made your neighborhood safe/dangerous?

! What is your first memory of seeing the police?

! What were some of the reasons police picked up people in your neighborhood?

! What was the best thing about school? Worst?

! Where did you sit at lunch? What did you have for lunch?

! Tell me about times when you were teased by other kids.

! What are some of the reasons you missed school?

! Where have you lived? Begin with birth, note all the reasons for the moves.

I like to ask my client, who is obviously in a very stressful situation being

detained awaiting trial, who he or she would most like to speak to for
comfort right now (whether dead or alive). This will open up dialogue about
relationships and, if the person is already dead, then you can talk about
how that loss affected him or her. It also shows you what kind of person he
or she looks up to.

To explore possible sexual abuse, it is helpful to ask "What were your first sexual experiences?"
rather than directly, "Were you abused?" Sometimes, the responses are about clear sexual abuse that
the client doesn't recognize as such - it's less threatening when the word “abuse” is left out.
 9

Client’s Self Image

Ask clients to list ten things about themselves that they want the jury to know, things that will
demonstrate who they are. Consider using their responses verbatim in the sentencing report.

Instead of asking directly about their behavior, ask them what others might say. For example, "Do
other people think you have a bad temper?" rather than “Do you have a bad temper?”

Goals, Future Plans

! What are your goals? What do you want to be?

! What do you need so you don’t come back here? Are you getting that here? Are you getting that at
home? In your community?

Have them describe what they would like their future to be, what they will be doing five, ten years
from now. What needs to be done now to create that future? What help do they need?

Health

! How are you feeling?

! How are you sleeping? What time do you go to sleep, wake up? When you wake up during the night,
what gets you back to sleep? What wakes you in the night? What do you do to help yourself sleep?
Asked at each visit, it's a good way to keep track of possible deterioration.

! Do you use any home remedies rather than going to the doctor?

! Tell me about your last cold or flu. How did you get better? How often do you get sick?

! How is your appetite? How long is the longest you have gone without eating? What was your
favorite food as a child? What kind of food did you hate? What happened to you if you didn’t eat
food you hated?

Ask about scars. This can bring up events, even traumas, that have been forgotten.

Always ask about head injuries, if a client has ever been hospitalized or lost consciousness for any
reason.

Drugs and Alcohol

! Tell me about the first time you ever heard about alcohol. Drugs.

! Tell me about the first time you ever used alcohol. Drugs.
 10

! How did you feel when you were high/using drugs?

! What do you think is the reason you use/used drugs? Or: What makes people do drugs?

! What is an addict? Alcoholic?

! What did you do to keep from overdosing?

! Did you prefer to use alone or with other people?

! When you were not using drugs, what kept you from using?

Mental Health

! What medications have you taken? Have you ever seen a psychiatrist or psychologist?

! Do you think that you think normally? Are you like other people?

Mental Status Examination

A brief mental status exam can indicate problems in cognitive function. Symptoms which might
cause the interviewer to suspect cognitive problems include: an unsteady gait, slurred speech or
unusual difficulty in finding words, drowsiness or varying degrees of alertness, inability to focus or a
very short attention span, irrational answers, and so on. There are a number of mental status exams
available on the Internet (just search “mental status exam”). Some are scored to assist in
interpretation of the results. Even without using a numerical score, answers to exam questions that
suggest impairment should lead to an evaluation by a professional.

Examples of mental status exam tasks:

! What is the date (month, date, day and year?) What time of day is it?

! Who is the president of the United States?

! Name five large cities.

! Ask the person to begin with the number 100 and subtract seven, then subtract seven again and
again. Stop after five answers.

! Note the presence of incoherent or irrelevant speech.

Miscellaneous Good Questions

! What do you think I'd be surprised to know about you?

 11

! What would you being doing at home, if you were home now?

! What do you do for fun?

#What are you best at, what are you really good at?

! What would you tell the judge if he or she was sitting in the room with you right now?

FAMILY INTERVIEWS

Explain to the family what your purpose is, what your role in their relative’s case is. Give a little
history of yourself and ask them if they have any questions about you. Let them know that they
should always feel free to ask why a question is being asked. Assure them it is not to pry or be nosy.

An individual's life is complex. The abundance of information that must be ready to be presented to
the trial court represents this individual's life and we must be prepared to have a complete time line.
Explain to the client and the family members, friends, etc., that even though the case has just started,
we have to put together a history for the judge and/or the jury. Explain to them that this process is
never a waste of time and that you must be as thorough as possible and project the "human" side of
the client whether it is at trial or at sentencing.

I begin the first meeting by stating what I know so far, e.g., I say: "This is all
the information I have, so a good place for us to begin would be with you
giving me more details.”

STRUCTURED INTERVIEWS

Most of the sentencing advocates who contributed to this project strongly feel that structured
interviews are not productive. A checklist to be reviewed before an interview may be useful as a
reminder of what to cover. It may help after an interview to discover areas that were missed.
Subjecting the client to a “fill in the blanks” interview, however, will rarely allow a relationship to
build and will rarely bring out as much information as a more “conversational” interview.

This is a checklist that contains some areas to be investigated:

Race and national origin

Marital Status, marital history
Education
Employment Income
Recreational activities
Religion, level of involvement
Charitable works
Family history [Genogram]
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Developmental history Childhood activities

Childhood problems
Legal history
Military history
Sexual orientation Sexual relationships
Health history
History of injuries, assaults, neurological problems
Psychiatric counseling history
Social services contacts
Current mental status in jail (by report from the client, observation, and jail records)
Substance use history
Feelings about self
Understanding of alleged crime
Mental state during the time of the alleged crime
Demeanor during interview
Clinical impressions
Collateral information

The following NASAMS members have contributed to this project: Toni Bovee-Elliott, Cheryl D.
Cornell, Dale Davis, Ingrid Christiansen, Lisa Christianson, Christine Fiechter, Maryanne Gackle,
Tina Gale, Deborah Gardner Conta, Selena Garr, Stacey Gurian-Sherman, Cheri Hodson-Guevara,
Sharlotte Holdman, Miles C. Jackson, Joel Kanter, Noreen Keenan, Denise King-Velazquez, Eric
Kunz, Albie LaFave, Mary Larson, Ron Marlett, Julie Norman, Vera Ockenfels, Nancy Pagani, Carol
C. Peters, Linda Sobotka, Jacky Watson-Jolly, Juliet Yackel, and Manette S. Zeitler.
 Case 1:05-cr-00008 Document 154 Filed 02/24/2006 Page 2 of 14

IN T H E UNITED STATES DISTRICT COURT

FOR T H E NORTHERN DISTRICT O F ILLINOIS
EASTERN DIVISION

UNITED STATES O F AMERICA, )

)
Plaintiff, ) Case No. 05 CR 008
) Hon. Milton I. Shadur,
v. ) Judge Presiding.
)
JAMAR BAILEY and )
A N T H O N Y GILMER, )
)
Defendants. 1
MOTION FOR LEAVE TO RETAIN MITIGATION SPECIALIST

N O W COMES the Defendant, A N T H O N Y GILMER, by and through his attorney,

J O H N T H O M A S MORAN, JR., and moves this Honorable Court for leave to retain a

mitigation specialist. Leave is sought in advance pursuant to 18 U.S.C. 3006(A). In support of

this motion, Defendant states as follows:

1. 18 U .S.C. 3006(A) provides that counsel should seek permission in advance of

retaining expert assistance in Criminal Justice Act cases. The act further provides that

the service provider should claim reimbursement directly on C.J.A. form 21,

"Authorization Voucher for Expert and Other Service." Counsel hereby requests this

authorization and will tender a completed CJA21 Voucher for review.

2 O n January 10, 2006, Defendant A N T H O N Y GILMER was convicted on charges of

conspiring to possess narcotics in violation of Title 21, United States Code, 846 and

possession with intent to distribute narcotics in violation of Title 21, United States
 Case 1:05-cr-00008 Document 154 Filed 0212412006 Page 3 of 14

Code, $ 841(a)(l). Defendant A N T H O N Y GILMER is scheduled to be sentenced on

March 14, 2006. However, his sentencing hearing is scheduled to be postponed.

3. It has come to counsel's attention that there are certain unique features in Defendant

A N T H O N Y GILMER'S background that need to be developed and prqsented to the

Court at sentencing in order for the Court to determine the appropriate sentence for

Defendant A N T H O N Y GILMER. These factors may constitute grounds for a

downward departure from the guidelines range. Counsel represents to the Court that

these services would be retained by counsel if the Defendant was wealthy, and that

these services are necessary in order for counsel to discharge his duty to his client

under the Sixth Amendment of the United States Constitution.

4. A copy of Dr. Victor D. Lofgreen's curriculum vitae is attached hereto. Counsel has

spoken with Dr. Victor D. Lofgreen and described the services desired. D r . Victor D .

Lofgreen estimates that he can provide these services at his standard hourly rate of

$125.00 and that the task can be completed for no more than 30 hours exclusive of

testimony at the hearing.