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The Rise of the Mitigation Expert: Social workers and psychiatrists are in courtrooms more often

Mike Cramer

Richard Hess could have faced the death penalty for the 1995 rape and murder of a Naperville woman.

His attack on Nicole Kornelie was brutal enough, the evidence clear enough, that pushing for capital punishment would have been an easy choice for the prosecution.

But DuPage County State's Attorney Joseph Birkett had to weigh those circumstances against the likely defense, which included testimony from an expert witness, a kind that has become more common in courts throughout Illinois: the "mitigation" specialist. In fact, a social worker was prepared to take the stand to talk about Hess' childhood, his history of drug use, anything that might have contributed to his crime - and might serve to sway the court in his favor. 

The result? Birkett offered Hess a deal: Plead guilty and the state wouldn't seek the death penalty. Hess pleaded guilty and was sentenced to serve out his natural life in prison. "So you could say, in effect, that it worked," Birkett says. Potential evidence by the mitigation specialist was one factor that helped him decide against pushing for capital punishment.

Such expert witnesses are increasingly employed in criminal cases, for a host of societal reasons. In some instances, the law requires mental health evaluations, meaning an increasing need for expert testimony from psychiatrists, psychologists, social workers and others who weigh in with evidence on a defendant's mental state.

"We seem to be having more clients with mental problems," says DuPage County Public Defender Steve Baker, who, as past president of the Illinois Public Defender Association, has noticed a statewide trend. "Maybe it's just because people are getting better medical treatment and referrals to psychologists and psychiatrists. That's one possible explanation."

Whatever the reasons, the results are costly. Baker says his county's budget for expert witnesses more than doubled in the past few years, going from $33,000 in 1996 to $85,000 this year. If someone has a history of mental health treatment, Baker says, that is something the defense is likely to bring out in court. He adds that tougher sentencing laws have sparked an equal effort on the part of defense attorneys to search for additional ways to help their clients. Further, while state law no longer requires a fitness hearing for every defendant on mind-altering medicines known as psychotropic drugs, many judges will "err on the side of caution," Baker says, and order one.

A thorough examination of a defendant's past for any mental health issues is now much more commonplace, agrees Larry Fichter, who retired in December after 12 years as Macon County's state's attorney. Fichter has noticed a marked increase in the use of mental health expert witnesses over the past few years.

John Rekowski, the Madison County public defender, has noticed as well. He says there are many legal areas in which psychiatric professionals can weigh in on a case. He's noticed that in his county more people are claiming repressed memory syndrome. "We're getting people who suddenly remember child abuse when they were 12 and they are now 30." Rekowski says the number of such cases started climbing about five years ago, and has been "steadily creeping up as we get more and more sex cases" due to tougher laws and a growing awareness that has led to more reporting of alleged sex offenses.

Rekowski's budget for expert witnesses has nearly tripled in the past five years, though much of that increase can be attributed to the increased use of DNA technology. "A decade ago, maybe the occasional fingerprint expert came in," he says. "Now I see an expert every few weeks."

There are many ways in which a defendant's mental health can come up in court. There are fitness hearings, insanity evaluations, claims of mitigating circumstances that may lighten a sentence. There are medical evaluations on child abuse and whether it may have played a role in a defendant's actions. There are evaluations on the likelihood of rehabilitation, and, for sex offenders, evaluations at sentencing to determine whether someone is likely to commit similar crimes again.

nother factor driving the trend may be what Dr. Philip Pan calls the "criminalization of chronically mentally ill people." A specialist in forensic psychiatry for the Cook County circuit court. Pan says tighter budgets for inpatient mental health care and inadequate resources for outpatient treatment have combined to push more people with mental health problems into situations where they are much more likely to "run afoul of the law," and wind up charged with a crime. 

Still, though taxpayers are picking up the increasing tab for mental health experts in criminal cases, those in the system see the trend as positive. Birkett says while accused criminals can sometimes gain the upper hand, as he believes was the case with Hess, just as often a defendant's mental health background can provide information that is helpful to the prosecution. For instance, jurors might see drug use as an excuse, or they might see it as another strike against the defendant's character.

Greg O'Reilly of the Cook County public defender's office worries about what he calls "junk science" presented as evidence, though he thinks the benefits outweigh those concerns. "I think there's a push on both the prosecution and the defense sides to bring science into the courtroom to assure accurate verdicts," he says.

Dr. Pan sees other positives: The advent of new and better drugs used to treat psychiatric problems and an erosion of the social stigma surrounding mental illness has led to more people seeking and getting treatment for it. 

Margaret Schroeder is a free-lance journalist whose work appears regularly in the Chicago Daily Law Bulletin.

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