For the Defense - Volume 2, Issue 2 - 2017 - 26

of trauma. If the defendant still does not acknowledge the trauma, the expert may have to educate
the court about how this is may not be unexpected
for victims of trauma.
Factor 3: Circumstances of the Offense. When
gathering data related to this factor, the clinician
will rely heavily on information from interviews
with the defendant and records reviewed. In
interviewing the defendant, the clinician will
want to obtain a detailed account of the offense,
including the circumstances leading up to and
following the offense.
The clinician will also want to assess whether
the degree of the defendant's participation was
related to normal adolescent characteristics such
as failure to fully appreciate the risks involved,
vulnerability to the influence of peers, heightened
desire for sensation-seeking, the influence of
drugs or alcohol or an unmet mental health need.
For example, in reflecting on a crime that occurred
fifteen years earlier, a defendant described how
he and his co-defendant, a "friend" six years his
senior, broke into an apartment because they
"heard" the victim had thousands of dollars
hidden there. The victim came home while they
were in his house and began to attack the co-defendant. While they were fighting, the defendant
searched another room looking or something
to use to help his friend. After a brief search, he
found a knife that he used to stab the victim.
When asked why he did not leave the apartment
instead of looking for something to use to help
his friend, he explained leaving his friend was not
an option because their friends would call him "a
punk." The defendant's description of the offense
was consistent with what he and his co-defendant
told the police hours after they were arrested. The
clinician could explain to the court how the defendant's account of the offense was consistent with
many aspects of normal adolescent development
including risk-taking and the influence of peers.
Factor 4: Rehabilitation Potential. The clinician
will want to review the defendant's prison records,
to understand what services and programs the
defendant participated in and the nature of the
defendant's disciplinary records. Some defendants
may have worked in prison and for many this may
be the only service or program in which they participated. Obviously, work and skills are an aspect
of rehabilitation. Reviewing the work record with

For The Defense | Vol. 2, Issue 2

The clinician will want to review
the defendant's prison records, to
understand what services and
programs the defendant participated
in and the nature of the defendant's
disciplinary records.
the defendant can provide data regarding what
prompted the defendant to get the job and what
duties were required. Prison records may also lead
to collateral interviews. Imagine a scenario where
the records indicated the defendant worked as
an electrician for four years and during a brief
phone call with the defendant's supervisor, the
clinician learned the defendant was given more
responsibilities than other inmates working in
the shop. The supervisor also explained that the
inmate took it upon himself to learn techniques
that made the shop run more efficiently and
taught these techniques to other inmates. By
interviewing the supervisor, the clinician gained
information beyond what was in the records that
could be useful to the court in its consideration of
the final Miller factor.
On the other hand, the absence of being
involved in programming or work while in prison
may not necessarily be indicative of poor rehabilitation potential. It is important the clinician
discern if lack of involvement reflects the defendant's desire or the facility's policy. For example,
when allotting resources, some facilities do not
provide LWOP inmates an opportunity to participate in rehabilitative programming such as work
or drug treatment or cognitive behavior therapy
to address criminal thinking.
Finally, the clinician will want to place the
defendant's disciplinary records into a developmental perspective. Research has shown that
those who go into prison before their eighteenth
birthday incur disciplinary write-ups at a faster rate
than their older counterparts.45 Moreover, reviewing some disciplinary records with the defendant
allows the defendant an opportunity to place
the incidents into context which then aids the
clinician in assessing if the behavior represented
some combination of normal developmental
oppositionality, unmet mental health needs or an

Table of Contents for the Digital Edition of For the Defense - Volume 2, Issue 2 - 2017