Capital punishment, Capital defense counsel, Death penalty, Cultural competency, Eighth Amendment, Mitigation investigation, ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases
Cultural factors so pervasively influence the interactions of the client with other people - including all of those with whom he comes into contact at significant times in his life (e.g. in educational, medical, and correctional institutions), those surrounding him in the community in which he develops, and, critically, the members of the defense team - that it is imperative for the defense team to have the talents necessary to conduct a mitigation investigation that is culturally competent. The investigation must recognize and surmount an array of barriers, overt and subtle, to obtaining information from people of variegated backgrounds. As the courts have long recognized, in the context of mitigation, culturally competent investigation is more than an admirable and desirable skill. It is a standard of performance. Building on the framework provided by the ABA's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases reprinted in 31 Hofstra L. Rev. 913 (2003) and the Supplementary Guidelines that are the subject of this issue, this article details what capital defense counsel needs to do in order to (a) meet that standard and (b) of equal importance, utilize the fruits of the investigation to construct a persuasive narrative of the client's life course that emerges authentically from his culture. Counsel must comprehend the world from the client's viewpoint and be able to present his life story from the inside out.
Christopher Seeds and Scharlette Holdman, "Cultural Competency in Capital Mitigation," 36 Hofstra Law Review (2008)