Mitigation Abroad: Preparing a Successful Case for Life for the Foreign National Client

Abstract

Many capital defendants are foreign nationals; their representation both presents special challenges and offers special opportunities. In accordance with the ABA's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases reprinted in 31 Hofstra L. Rev. 913 (2003) and the Supplementary Guidelines that are the subject of this issue, competent counsel must handle both effectively. Our article provides a detailed primer for accomplishing this. A foreign country may acknowledge a person as a national on a basis that is not intuitively obvious to American counsel. If so, the person may be entitled to rights under both bilateral and multilateral treaties. In any event, conducting a mitigation investigation abroad will surely pose unique logistical difficulties, ones which the agencies responsible for defense funding will have to acknowledge. But it may benefit from the unique resources that foreign governments will provide if - but only if - counsel discharge the established duty of identifying and exploiting those resources. Having done so, counsel need to integrate the results of the investigation into a narrative that enables decisionmakers to comprehend the impact of the client's foreign background on the course of his life.