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Hofstra Law Review

Abstract

This article appears in the Hofstra Law Review symposium issue on the Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty cases.

Effective capital defense lawyers must embrace, not suppress, human empathy. A defense team that demonstrates genuine compassion for the survivors - reaching out to get to know them, to listen to their stories, and to discern the interests the survivors hope to have met in the judicial proceedings - increases the possibility that the proceedings will end with compassion for their client. As a practical matter, this may well occur through some sort of agreed-upon resolution crafted to accommodate the needs of all concerned. Among the numerous tangible and intangible benefits of such an outcome, of course, will be a direct cost-saving to the judicial system. Hence, those in charge of providing resources to the defense should deem the investment in bringing it about to be a wise one.

Accumulated experience has shown the wisdom of the suggestion in the ABA's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases reprinted in 31 Hofstra L. Rev. 913 (2003) that outreach to the survivors works best when facilitated by a well-qualified intermediary who is specifically engaged as an expert for that particular purpose and is not otherwise a member of the defense team. Indeed because of such intermediaries' unique ability to provide a service that could not be as well performed by any other method, retaining victim liaisons is becoming a necessary part of the practice of defending clients in capital cases.

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