5.4 Mitigation

• Library: Trial of Capital Murder Cases in Virginia (Virginia CLE) (2019 Ed.)

5.4 MITIGATION

5.401 Statutory Factors.

Facts in mitigation may include, but shall not be limited to, the following: (i) The defendant has no significant history of prior criminal activity, (ii) the capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance, (iii) the victim was a participant in the defendant's conduct or consented to the act, (iv) at the time of the commission of the capital felony, the capacity of the defendant to conform his conduct to the requirements of the law was significantly impaired, (v) the age of the defendant at the time of the commission of the capital offense or (vi) even if § 19.2-264.3:1.1 is inapplicable as a bar to the death penalty, the subaverage intellectual functioning of the defendant. ¹⁵⁴

Only the statutory mitigating factors of impaired mental faculties and age have been the subject of any significant discussion by the Virginia Supreme Court.

A. Impaired Mental Faculties. In Smith v. Texas, ¹⁵⁵ the United States Supreme Court stated that "there is no question that a jury might well have considered petitioner's IQ scores and history of participation in special-

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education classes as a reason to impose a sentence more lenient than death. Indeed, we have held that a defendant's IQ score of 79 . . . constitutes relevant mitigation evidence."

Mental evaluations conducted pursuant to section 19.2-264.3:1 of the Virginia Code are distinct in purpose from competency, sanity, and intellectual disability evaluations. Upon motion of an indigent person charged with capital murder, the statute directs the circuit court to appoint one or more qualified mental health experts

to evaluate the defendant and to assist the defense in the preparation and presentation of information concerning the defendant's history, character, or mental condition, including (i) whether the defendant acted under extreme mental or emotional disturbance at the time of the offense; (ii) whether the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was significantly impaired at the time of the offense; and (iii) whether there are any other factors in mitigation relating to the history or character of the defendant or the defendant's mental condition at the time of the offense. ¹⁵⁶

If the defendant decides to present the testimony of mental health experts in mitigation, he or she is compelled upon pain of possible preclusion of the evidence to turn over all reports of his or her experts and cooperate with a second evaluation conducted by the Commonwealth's expert. ¹⁵⁷

In Giarratano v. Commonwealth, ¹⁵⁸ the defendant underwent psychiatric evaluation focused on statutory factors (ii) ("the capital felony was committed while the defendant was under the influence of extreme emotional disturbance") and (iv) ("at the time of the commission of the capital felony, the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was significantly impaired"). The examining physician testified at the penalty trial that the defendant was undergoing extreme mental and emotional disturbance at the time of the crime and that he suffered from serious impairment of his capacity

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to control his behavior. The extreme emotional distress was attributed to the accumulated stress of his prior environment and the acute stress of drug abuse. The doctors who examined the defendant on behalf of the Commonwealth did not concur in these conclusions. ¹⁵⁹ The Virginia Supreme Court cited the trial court's finding that

the evidence of emotional stress and reduced control, while admissible by statute and carefully considered by the court, is not of such nature as to mitigate the penalty in this case. By becoming an habituate of drugs and alcohol one does not cloak himself with immunity from penalty for his criminal acts. ¹⁶⁰

The last sentence of the preceding quote illustrates a practical point for capital trial attorneys to consider. An impaired state of mind brought on by drug abuse may be seen by the jury as an aggravating rather than a mitigating factor.

"Mental retardation as a mitigator and mental retardation under Atkins . . . are discrete legal issues." A pre-Atkins finding that defendant was "mildly mentally retarded" did not constitute a finding that defendant was "so impaired as to fall within Atkins." Therefore a new hearing to determine the extent of the defendant's intellectual disability was not barred by double jeopardy or issue preclusion considerations. ¹⁶¹

B. Age. The only other statutory mitigating factor to have received judicial mention is factor (v) ("the age of the defendant at the time of the commission of the capital offense"). Assuming that the defendant is over the age of eighteen, ¹⁶² youth may nonetheless mitigate the punishment imposed. In Peterson v. Commonwealth, ¹⁶³ the court rejected the contention that the defendant's age required setting aside the death sentence. No additional significance was attributed to the fact that age was on the list of factors

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designated by the statute, and it was found to be "merely a fact to be weighed by the jury." ¹⁶⁴

5.402 Nonstatutory Factors. A consistent theme in the capital jurisprudence of the United States Supreme Court has been the insistence that there be no barriers...