Gerald Bierbaum

Gerald Bierbaum recently joined the Capital Habeas Unit of the Federal Public Defender’s Office for the Middle District of Pennsylvania as a Research and Writing Attorney. Prior to moving to Pennsylvania, he spent ten years working on capital trials and writs in Texas and eight years working on capital writs in Nevada. He can be reached at .

SMO: Front–Loading Mitigation

Empathy breeds proper judgment. . . . Empathy gives you an inside view. It doesn’t say, “If that was me . . .” Empathy says, “That is me.”

—Final words of Ray Jasper before being
executed by Texas on March 19, 2014

Empathy frames choices about punishment. Empathy for the victim extends sentences; empathy for the defendant embraces mitigation. A couple of neurological studies exploring empathy reveal, without surprise, that a sense of fairness modulates the experience of empathy. However, the sense of fairness weighs heavier on the men than the women, which indicates men and women use different neural processes when exposed to potentially empathic evidence. These studies suggest that we may have to introduce mitigation early, “front load” mitigation to have any chance with male jurors.

Neuroscientists studying how the brain processes empathy asked subjects to play a game where they trade with a partner. Sometimes the partner trades fairly, sometimes unfairly. The subjects then sat in an fMRI machine and saw photographs of the partner in pain.1 Generally, for both men and women, seeing a stranger in pain activates the brain regions of the right interior insula and the right anterior and cingulate cortex.2 However, when the men saw an unfair game partner in pain, those brain regions showed either greatly diminished response or no response while the regions normally associated with reward responded.3

When women saw the unfair partner in pain, the normal em­pathetic regions showed somewhat muted activation but the reward centers showed no activity. Clearly, the neurological process for empathy varies between men and women when the defendant appears unfair. For men, the neurological process for empathy seems mostly altered and unavailable; for women, the process stands somewhat muted. A defendant must appear fair then, regardless of what he has done, before men will feel any significant empathy.

A related study showed different neural processing between men and women when asked to compare their own emotions to the emotions (not necessarily pain) of a person in a photograph.4 Women, when making the comparison, showed activation in the right inferior frontal cortex and the right cerebellum, areas that usually involve the direct experience of emotion. Men showed an activation in the tempoparietal junction, which processes thoughts about the relation of self to others. In addition to processing empathy differently based upon fairness, men analyze the emotion of others differently than women. Merely showing the emotions a defendant experienced—frustration, sadness, or fear—and asking men to consider what the defendant’s emotions meant will not compel male jurors to walk in the defendant’s shoes.

Fairness is primal for promoting an empathetic response in men. To promote and protect fairness, we need to examine the factual details of the offense and introduce mitigating evidence as early as possible. For example, imagine the prosecutor accused the defendant of shooting a clerk during a robbery. During voir dire we can ask “Could anything compel a person to rob?” or “Is there a safe way to rob a stranger?” Both of these questions could potentially relate to defenses (such as duress, theft from person rather than robbery), but the questions may also suggest viewing the offense from both the victim’s and the shooter’s point of view.5 Later, when a detective introduces the store video, we can ask about the poor condition of the shooter’s clothing or shoes, if shooter drove or was on foot, or whether he seemed high, etc. If we have a live eyewitness, we can ask what the shooter smelled like, if he was dirty, and so forth. Further, somewhere in this process—when responding to an objection or prefacing a question—we can agree that no victim deserves to be killed and no defendant is entitled to rob or kill, but we introduce these facts only to help the jurors understand the whole incident. Seeing the shooter’s desperation or deprivation, at the time of the offense, promotes both a universal version of the offense and reveals a shooter who is more than just mean.6

A shooter will never be completely fair. When we introduce these type details, we may even prompt the prosecutor to holler that no victim deserves to die and no one is entitled to rob and kill. But we should not cower. We cannot allow fairness to remain exclusively in the domain of the prosecution or the victim. We can build in fairness for the defendant, even if he proclaims his innocence, by carefully presenting the details of the offense and implanting mitigating themes during voir dire and during the introduction of the offense.

Introducing mitigating evidence prior to a sentencing hearing should not leave us speechless during the sentencing hearing either. If the jury (or judge) arrives at sentencing seeing why the defendant committed the crime, then during sentencing we are free to discuss what happens now—e.g., how the defendant’s problems can be corrected, how much the defendant should suffer given the universal view of the offense, and just what mea­sures will ensure the safety of the survivors in the future. We are not required to save mitigating themes for the sentencing hearing to pursue a just and merciful sentence.

Mitigating evidence, introduced with the offense or during voir dire, can protect the fairness needed for male jurors to feel an empathetic (or mitigating) response during a sentencing hearing. Mitigating evidence can protect or promote a sense of fairness by describing the circumstances beyond the defendant’s control that compelled him to be the person he is and to act the way he does, including committing the offense. When seeking empathy from male jurors, front-loading mitigation, or combining guilt and sentencing evidence, may be necessary for any lenient or merciful punishment.


1. Tania Singer, Ben Seymour, John P. O’Doherty, Klaas E. Stephan, Raymond J. Dolan, and Chris D. Frith, Empathic neural responses are modulated by the perceived fairness of others, Nature, Jan 26; 439(7075): 466–469, (2006).

2. Boris C. Bernhardt and Tania Singer, The Neural Basis of Empathy, Annual Review of Neuroscience Vol. 35: 1–23 (July 2012).

3. Singer, Empathic neural responses.

4. Martin Schulte-Rüther, Hans J. Markowitsch, N. Jon Shah, Gereon R. Fink, and Martina Piefke, Gender differences in brain networks supporting empathy, NeuroImage 42, 393–403 (2008).

5. For a defendant’s right to voir dire on defense, see Tex. Const. art. I, § 10 (“ In all criminal prosecutions the accused . . . shall have the right of being heard by himself or counsel, or both. . . .”); Jones v. State, 223 S.W.3d 379, 381-82 (Tex.Crim.App. 2007)(holding denial of proper voir dire question is error of constitutional magnitude); Rodriguez-Flores v. State, 351 S.W.3d 612, 619 (Tex.App.—Austin 2011)(discussing voir dire regarding questions of duress). For capital cases, in Morgan v. Illinois, 504 U.S. 719, 729 (1992), the United States Supreme Court determined that jurors who could not give effect to mitigation evidence could be struck for cause, but the concepts here should not be limited to capital cases. Male jurors serve on non-capital as well as capital juries. We will often face male sentencing judges.

6. See Blakely v. Washington, 542 U.S. 296, 159 L.Ed.2d 403 (2004), where the United States Supreme Court refers to a lower court’s parsing of a defendant’s motives for committing the offense and the means of committing the offense to justify a specific punishment:

The defendant’s motivation to commit kidnapping was complex, contributed to by his mental condition and personality disorders, the pressures of the divorce litigation, the impending trust litigation trial and anger over his troubled interpersonal relationships with his spouse and children. While he misguidedly intended to forcefully reunite his family, his attempt to do so was subservient to his desire to terminate lawsuits and modify title ownerships to his benefit.

The defendant’s methods were more homogeneous than his motive. He used stealth and surprise, and took advantage of the victim’s isolation. He immediately employed physical violence, restrained the victim with tape, and threatened her with injury and death to herself and others. He immediately coerced the victim into providing information by the threatening application of a knife. He violated a subsisting restraining order.

542 U.S. 301 (internal citation omitted).

The Means of Mitigation

Has any trial judge ever said, “Well, the Defendant has cancer, so I will assess the maximum sentence available,” or “Leukemia? He has leukemia? Then he gets life without!” Such a sadistic lack of compassion—that a person should suffer an enhanced punishment because of a condition that he or she did not purposefully acquire, a condition that causes suffering and disability—tarnishes a reputation for fairness. This happens in every courtroom, however, when we present a defendant who experienced permanent developmental damage.

Defendants get beaten as children. They get drunk in the womb. They get knocked out and come around—too often—with impaired cognitive abilities as a lingering reminder. They get abandoned before they can protect or feed themselves. Like a cancer, these injuries from early childhood can eat through a mind, warp a personality, and make permanent, unsought changes to the individual. Defendants do not trust—they cannot trust. They suspect, they stalk, and they harass. They do not control themselves; they impulsively steal, or strike out with a fist or knife or a gun, even though the consequences are immediate. They do not recognize immediate consequences. They get drunk or high and lose jobs and families. They harm other people, and they harm themselves.

But the courts routinely ignore defendants’ suffering when they would offer compassion for any other individual. The court sees the harm a defendant causes and sees the threat of future harm. In mitigation, we strive to reveal the root causes of the harm, but how can we expose the root cause without exaggerating or amplifying the future threat? I know of several methods that do not work completely.

The “Disease Model” argues that a defendant, through no fault of his own, has succumbed to some crime-inducing “pathogen” such as physical or sexual abuse, addiction, or brain damage, which compels aberrant behavior. But the Disease Model falls short of offering a complete defense; it fails to incorporate any consideration of Free Will. The United States Supreme Court recognized the shortcomings of the Disease Model in a case that offered alcoholism as a defense:

It is one thing to say that if a man is deprived of alcohol his hands will begin to shake, he will suffer agonizing pains and ultimately he will have hallucinations; it is quite another to say that a man has a “compulsion” to take a drink, but that he also retains a certain amount of “free will” with which to resist. It is simply impossible, in the present state of our knowledge, to ascribe a useful meaning to the latter statement. This definitional confusion reflects, of course, not merely the undeveloped state of the psychiatric art but also the conceptual difficulties inevitably attendant upon the importation of scientific and medical models into a legal system generally predicated upon a different set of assumptions.

Powell v. Texas, 392 U.S. 514, 526, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968).

The “Narrative Model” directs trial counsel to explain a defendant’s life in the terms of a familiar story, hopefully with the defendant as the protagonist. See Amsterdam, Anthony, and Bruner, Jerome, Minding the Law, p. 110, Harvard, 2002. A defendant overcomes the hardships he has faced, even hardships he has created, and hopefully the listener will want him to “win” in the end, with “winning” equating to a merciful sentence. However, this model too falls short by requiring a receptive listener to plunge into the story. Often, however, we cannot count on a receptive listener.

The standard “fallback” model involves finding elements that would make an objective person pity the defendant, tossing up these facts, one after another, and hoping one sticks. Yet this model too falls short by failing to provide a context that explains why the court should care about the circumstances that befell the defendant.

None of these models deliver a sure-fire merciful outcome, but the lack of a perfect way, however, does not mean sentencing should be a roll of the dice. Sentencing should be more than an afterthought; it is a search for truth, revealing both what the defendant did and why. Just as we contemplate how best to pre­sent evidence at guilt-innocence, obtaining a beneficial sentence requires conscious effort to understand the evidence available, and how best to present it in a persuasive manner that explains the defendant as a unique individual, albeit a flawed one.

By thinking about mitigation in the same manner we think about guilt-innocence presentations, by using a calculated, systemic method (or model) of presenting mitigation, we can provide the maximum opportunity for the court to see the defendant as a damaged human being who possesses free will, but who made decisions in the context of an emotional or chemical or psychological battlefield—not in a safe, calm, and protected office or home. By systemically thinking about mitigation, we take advantage of the defendant’s greatest weapon in the battle for mercy—and that weapon is our time, our attention, and our effort. While we cannot control what a sentencer thinks, we can nonetheless suggest a path for their thought, a path which, with conscientious effort, will lead to a just sentence and mercy.

Science and the Narrative in Criminal Defense

[This note assumes a trial lawyer hired a mental health expert and told the expert to go see the client and then give the lawyer a call.]

The expert calls and says, “Great news—the defendant’s anterior cingulate cortex shows severe damage!” What do you do? Do you mumble, “That’s great,” and make a note “anterior cingulate cortex damaged” and smile at the phone? At that point, is that information equivalent to the auto mechanic explaining why your car makes the grinding sound? For most trial counsels (most human beings in general), information about the anterior cingulate cortex means very little. But that information could become a meaningful portion of your client’s defense. All you really need to make that information meaningful is context.

Context is how that piece of information fits into your defense. Like it or not, your defense plays as a story or narrative in the minds of the jurors. Jurors organize trial information into stories.1 Pennington, N. and Hastie R, “The Story Model for Juror Decision Making,” Inside the Juror: The Psychology of Juror Decision Making, Cambridge, New York: Cambridge University Press (1993), pp. 192–221. They blend case-specific information acquired during the trial with knowledge about events similar to those in question and form a story. Id. The pieces of the story interact in ways that alter their individual significance—each merges with what came before and flows into what follows. Baron, J. & Epstein, J., “Is Law Narrative?”, 45 Buff. L. Rev. 142, 148 (1997); see also Griffin, L., Narrative, Truth and Trial, 101 Georgetown Law Journal 281 (2012).2

The information about the damaged anterior cingulate cor­tex must merge with the other elements of the story before it can become meaningful. Without that merger, also known as context, the information by itself probably will not fit into the twelve stories generated inside the jury box. With a conscious attempt to merge the information and provide context, however, the information could jump from being left out of the story to a meaningful portion of the story.

Science lends meaning and credibility to the defense story because good science appears objective and verified. A story is believable to the extent that it involves observable or “knowable” facts—an element of the story provides meaning to the story by being equally observable or knowable. An element of the story, based on good science, can lend the story credibility or meaning.

Science attempts to sort that which is knowable from that which is not. Science is a determination of what is most likely to be correct at the current time with the available evidence. Scientific explanations can be inferred from confirmable data only, and observations and experiments must be reproducible and verifiable by other individuals. In other words, good science is based on information that can be measured or seen and verified by other scientists. McLelland, C., “The Nature of Science and the Scientific Method,” The Geological Society of America, (August 2006). When incorporated into a story, science, by its objective nature, makes that story believable. Incorporating science into the story involves only asking a few questions of your expert and your witnesses.

You could incorporate the information about the damaged anterior cingulate cortex into your defense story with two simple steps. First, find out how your expert could explain, in layman’s terms, that the client’s anterior cingulate cortex is damaged. (The expert tested the client and interpreted the results, but that is not really part of the narrative.) What could the client do if he were not damaged? What does the client have difficulty with because of the damage? Is there anything the client can do now to remediate the damage? Getting the expert to tie any mental health problem into “real world” behavior and “real world” consequences transforms story disrupting science into part of the story.

Second, bring in the investigator and explore how the client’s disability impacted his life before and after the offense. If the expert says that the damage often inhibits the perception of pain, ask the investigator if the client frequently fought as a child or adolescent, or if he took physical risks that impressed his friends or peers. A client with a very high threshold for pain, because of brain damage, experiences a very different risk in a fight than an average juror. Once the prosecutor presents evi­dence that the client fought as an adolescent or while in jail awaiting trial, you can follow up with questions about the client’s reactions after the fights—i.e., “Did he seem hurt? Did he complain about being injured?”

In another example, if the expert tells you that the damage often keeps patients from feeling strong emotional reactions to unique events, ask the investigator if the client seemed unimpressed by the traumatic events of his childhood, his mother dying, or his friend getting hit by a car. When the prosecutor presents evidence that the client is a cold, emotionless predator who did not even react to the trauma of his early life, you can second the prosecutor’s argument: No one ever saw the client react emotionally to trauma, and the expert will become part of the story. The client does not react emotionally to trauma because the part of his brain that would provide that reaction does not work.

Consciously or not, jurors pull evidence into the form of a story. If the evidence will not fit into a storyline, jurors will eschew the evidence and not the story. You can prevent the jury from leaving your expert testimony or “science” out of the story by linking the “real world” impact of the scientific conclusion into the established facts of the client’s life. Mitigation is in the eye of the beholder, and the expert testimony, by itself, might not appear mitigating to every juror. You can, however, entice the jury to consider your mitigation in every case by making it an objective, unassailable part of the defense story.


1. The Story Model approach is the most recent and widely accepted in both the legal and social science communities (MacCoun, R. J., Experimental Research on Jury Decision-Making, 30 Jurimetrics J., 223 (1989); Rieke, R. D., & Stutman, R. K., Communication in Legal Advocacy, Columbia, SC, University of South Carolina Press (1989)).

2. Jurors control the final story with generic expectations about what makes a complete story. Pennington at 193.