Attorneys: Ineffective counsel issues could be raised on appeal if expert isn’t utilized
By Madeline Buckley
South Bend Tribune
SOUTH BEND, Ind. (AP) — With a life of imprisonment at stake for Steven Clippinger, an expert is digging through his past, searching for mitigating circumstances in his life that shaped the man who allegedly shot and killed his brother and sister-in-law.
These mitigation experts conduct a sweeping investigation, examining everything from prenatal medical records to whether the defendant ever lived in a residence with toxins such as lead-based paint.
The American Bar Association requires attorneys in capital cases to use mitigation experts to research the background of those who could face the death penalty, but, experts say, attorneys are increasingly using these specialists for defendants like Clippinger, who face life without parole.
Defense attorneys tell the South Bend Tribune a defendant could reasonably raise ineffective counsel as an issue on appeal if such an expert isn’t utilized, and some experts say the measure could be cost-saving down the road.
Clippinger had been out of prison for only two years after serving a murder sentence when prosecutors accused him of shooting and killing Matthew and Lisa Clippinger.
The married couple were shot to death in their Mishawaka home, their slayings reportedly witnessed by their children.
Clippinger previously served 20 years for killing a 66-year-old South Bend man in 1989. Found beaten and shot, the man was a family friend of Clippinger’s, and had argued with him about a gun, police said.
If Clippinger is convicted of murder in the deaths of his brother and sister-in-law, prosecutors are going after a life sentence in the case, a punishment that carries an extra burden of proof for the state.
In Indiana, murder typically carries a sentence of 45 to 65 years, unless prosecutors seek to prove it was committed with an aggravating circumstance.
In this case, prosecutors are arguing for life because of Clippinger’s previous murder conviction.
A judge has delayed the bench trial a number of times, most recently to give time for the mitigation expert to launch an investigation.
Attorney Mark Lenyo, a public defender, hired Bristol-based mitigation expert Manette Zeitler. Both said they could not comment while the case is pending.
Though the state objected to the amount of time the investigation would take, the defense told the court in November that Zeitler needs nine months to prepare.
“Our concern was this trial being tried in a timely fashion,” St. Joseph County Prosecutor Mike Dvorak said.
But noting that the defense has a right to call a mitigation specialist, Dvorak said the prosecuting team is also concerned with presenting a fair and balanced trial.
Zeitler is scheduled to appear in court for a status hearing on the mitigation process on Feb. 19.
Mitigation specialists signed an affidavit for the court that said the nine-month period is typical, as the dissection of an individual’s background is expansive and in minute detail.
In poring over the past of a Delaware man in a recent capital murder case, Chicago-based mitigation specialist Juliet Yackel collected medical records that went back three generations.
She mapped out everywhere the man had previously lived.
She coaxed private and painful details from family members about a family history of violence and sexual abuse.
“You have to spend time building a rapport,” Yackel said.
The ABA guidelines on the subject say detailing a life history involves interviews with key players in the defendant’s life as well as gathering medical and court documents.
A specialist is tasked with collecting a complete medical and mental health history, substance abuse history, any past abuse, neglect or trauma, environmental influences such as exposure to toxins, educational history and any other factor that played any role in shaping the life of the person facing execution.
“No one is really able to put a finger on what makes you good at this,” said Yackel, who has consulted on more than 50 cases.
Mitigation specialists come from a variety of backgrounds and typically spend hundreds of hours researching a case, Yackel said.
“I haven’t done my job until everything makes sense,” Yackel said.
In another recent St. Joseph County life-without-parole case, a mitigation specialist, Zeitler as well, examined the background of Charles Moore, who was on trial for killing two teenagers in 2012.
A jury convicted Moore of two counts of murder in the deaths of Jazmin Conlee and Alejandro Tincoco, and sentenced him to life.
“It’s pretty intensive thing because you are trying to obtain all these records,” Moore’s public defender Phil Skodinski said,
In these cases, the defense attorney is usually more focused on the guilt phase of the trial while the mitigation expert presents research in the event the defendant is convicted, Skodinski said.
The cost of the specialist varies depending on the number of hours -- Yackel said she routinely spends hundreds of hours.
For the Moore trial, the St. Joseph County Public Defender’s Office said the invoice for Zeitler’s service was $1,729.59 total at $85 per hour.
Zeitler said the number the office supplied was not an accurate representation of her service, but she did not clarify after repeated phone calls over four weeks.
“Case law would certainly suggest that not using a mitigation expert to assist defense attorneys provide information to the jury would probably be ineffective,” Jim Korpal, head of the St. Joseph County Public Defender’s Office, said, though it’s not written into law outright.
