By Caitlin Fenhagen
Since 2008, I have worked as a capital defender in North Carolina. I work in an office that represents clients in potentially capital cases at the trial level. Frequently, guilt is not an issue, and our job as defense counsel becomes saving the life of our client facing a death sentence. Prior to my current position, I was a public defender for many years handling all types of criminal cases. As I look back on those years, nothing prepared me for capital work as well as the time I spent representing youth in juvenile delinquency court. While the sentencing options for juveniles and capital clients vastly differ, the importance of the legal work, the significant role of sentencing preparation, and the impact defense counsel can have on the criminal justice process and the lives of our clients are similar.
A juvenile defense attorney and a capital litigator should never look at the criminal charges facing their client in a vacuum. Instead, zealous advocacy requires not only a rigorous evaluation and challenge of the evidence, but also a close examination of the client’s background and social history. While the necessity of this holistic approach in the capital realm is required due to the separate penalty phase where mitigating circumstances are considered, the holistic representation model is equally important to the effective representation of juveniles. If a juvenile is adjudicated delinquent, the case moves to disposition. It is at this dispositional hearing where a lawyer’s knowledge of the client’s background will result in a compelling argument for the least restrictive disposition that is tailored to the juvenile’s needs and strengths. The National Juvenile Defender Center Standards discuss the role and responsibilities of juvenile defense counsel in dispositional hearings in Part VI.
When capital litigators begin work on a potentially capital case, we immediately start the mitigation investigation concurrently with the fact investigation. This involves collecting all the records we can find for the client and developing a social history. In Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003), the U.S. Supreme Court held that the failure of counsel to adequately investigate and present mitigation evidence and information about a defendant’s background constituted ineffective assistance of counsel. According to the American Bar Association Guidelines cited by the Court, at the penalty phase of a capital trial, counsel should consider presenting evidence about the defendant’s medical history, educational history, employment history, family history, prior adult and juvenile court correctional experience and religious and cultural influences. 1 ABA Standards for Criminal Justice 4-4.1 Commentary, p. 4-55.
The review of juvenile court records, where they exist for a client, is always an important part of the mitigation preparation in a capital case. While no juvenile advocate expects that their young client will one day face a capital charge, attorneys must treat each client and case with the utmost care and diligence because it is always possible that later defense counsel, prosecutors, judges or juries will be reviewing the juvenile records and making decisions or judgments based on those records that impact your former client. More significantly, aggressive litigation in juvenile court that results in a positive legal outcome for the client or a disposition that focuses on treatment, rehabilitation and the utilization of available community resources for the client and family is the best way to ensure that juvenile court is the last stop for the client in the criminal justice system.
Since the Supreme Court’s decision in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 1611 L. Ed. 2d 1 (2005), a person under the age of 18 charged with first-degree murder is not eligible for the death penalty. However, there are far too many young people who are just 18 or slightly older charged with homicide cases in North Carolina against whom prosecutors seek a death sentence. While defense attorneys welcomed the decision in Roper, it is clear that often the only difference between these young clients facing a death sentence and those now facing a maximum sentence of life in prison are their dates of birth. The logic of the opinion should be extended to all young people. The issues addressed by the Court in Roper relating to adolescent development remain applicable to our young clients facing capital prosecutions. As capital litigators often representing clients under the age of 21, we must recognize the developmental differences from adults as we seek to convince the State, or ultimately a jury, not to choose a death sentence.
The intersection between capital and juvenile defense advocacy was highlighted again in 2012 when the U.S. Supreme Court decided Miller v. Alabama, 567 U.S. __ , 132 S.Ct. 2455, 183 L. Ed. 2d 407 (2012). In Miller, the Court held that mandatory life without parole sentences for juveniles are unconstitutional. As a result, juvenile defense attorneys representing juvenile clients charged with murder are now required to fully develop mitigation evidence about their clients to be presented at a sentencing hearing should their clients be convicted of first-degree murder. This mitigation investigation should begin at the inception of the representation of the juvenile client, just as it does in adult capital cases.
Representing juvenile clients and representing clients in potentially capital cases is a privilege. The work is difficult and often heart-wrenching, but it is critically important and necessary both for our vulnerable clients and for the criminal justice system as a whole. While there are many differences in the nature of this defense advocacy, there are many parallels, too. North Carolina is fortunate to have both a state-wide Juvenile Defender and Capital Defender office under the Office of Indigent Defense Services. These offices provide guidance, resources, and training opportunities for the defense bar and their continued support and vitality will ensure that effective and zealous advocacy persists in both realms.
Caitlin Fenhagen is the Deputy Capital Defender at the NC Office of the Capital Defender in Durham, N.C.