Skip to main content

Main menu

  • Home
  • Current Issue
  • Ahead of Print
  • Past Issues
  • Info for
    • Authors
    • Print Subscriptions
  • About
    • About the Journal
    • About the Academy
    • Editorial Board
  • Feedback
  • Alerts
  • AAPL

User menu

  • Alerts

Search

  • Advanced search
Journal of the American Academy of Psychiatry and the Law
  • AAPL
  • Alerts
Journal of the American Academy of Psychiatry and the Law

Advanced Search

  • Home
  • Current Issue
  • Ahead of Print
  • Past Issues
  • Info for
    • Authors
    • Print Subscriptions
  • About
    • About the Journal
    • About the Academy
    • Editorial Board
  • Feedback
  • Alerts
Research ArticleRegular Article

PTSD and Trauma as Mitigating Factors in Sentencing in Capital Cases

Lee Hiromoto, Case Keltner, William Frizzell, Joseph Chien and Landy Sparr
Journal of the American Academy of Psychiatry and the Law Online March 2022, 50 (1) 22-33; DOI: https://doi.org/10.29158/JAAPL.210052-21
Lee Hiromoto
Dr. Hiromoto is Resident Physician, Dr. Chien is Assistant Professor of Psychiatry, and Dr. Sparr is Forensic Psychiatry Fellowship Program Director, Department of Psychiatry, OR Health & Science University, Portland, OR. Mr. Keltner is Medical Student, School of Medicine, OR Health & Science University, Portland, OR. Dr. Frizzell is Staff Psychiatrist, Boise VA Medical Center, Boise, ID.
  • Find this author on Google Scholar
  • Find this author on PubMed
  • Search for this author on this site
Case Keltner
Dr. Hiromoto is Resident Physician, Dr. Chien is Assistant Professor of Psychiatry, and Dr. Sparr is Forensic Psychiatry Fellowship Program Director, Department of Psychiatry, OR Health & Science University, Portland, OR. Mr. Keltner is Medical Student, School of Medicine, OR Health & Science University, Portland, OR. Dr. Frizzell is Staff Psychiatrist, Boise VA Medical Center, Boise, ID.
  • Find this author on Google Scholar
  • Find this author on PubMed
  • Search for this author on this site
William Frizzell
Dr. Hiromoto is Resident Physician, Dr. Chien is Assistant Professor of Psychiatry, and Dr. Sparr is Forensic Psychiatry Fellowship Program Director, Department of Psychiatry, OR Health & Science University, Portland, OR. Mr. Keltner is Medical Student, School of Medicine, OR Health & Science University, Portland, OR. Dr. Frizzell is Staff Psychiatrist, Boise VA Medical Center, Boise, ID.
  • Find this author on Google Scholar
  • Find this author on PubMed
  • Search for this author on this site
Joseph Chien
Dr. Hiromoto is Resident Physician, Dr. Chien is Assistant Professor of Psychiatry, and Dr. Sparr is Forensic Psychiatry Fellowship Program Director, Department of Psychiatry, OR Health & Science University, Portland, OR. Mr. Keltner is Medical Student, School of Medicine, OR Health & Science University, Portland, OR. Dr. Frizzell is Staff Psychiatrist, Boise VA Medical Center, Boise, ID.
  • Find this author on Google Scholar
  • Find this author on PubMed
  • Search for this author on this site
Landy Sparr
Dr. Hiromoto is Resident Physician, Dr. Chien is Assistant Professor of Psychiatry, and Dr. Sparr is Forensic Psychiatry Fellowship Program Director, Department of Psychiatry, OR Health & Science University, Portland, OR. Mr. Keltner is Medical Student, School of Medicine, OR Health & Science University, Portland, OR. Dr. Frizzell is Staff Psychiatrist, Boise VA Medical Center, Boise, ID.
  • Find this author on Google Scholar
  • Find this author on PubMed
  • Search for this author on this site
  • Article
  • Figures & Data
  • Info & Metrics
  • PDF
Loading

Article Figures & Data

Tables

    • View popup
    Table 1.

    Cases Decided for Petitioner

    Case NameCourt and YearBrief Summary
    Doe v. Ayers175th Circuit, 2015In Doe, trial counsel failed to follow up on the investigator's leads (did not listen to tapes of interviews or read the transcripts), did not ask for Mr. Doe's prison records, only interviewed him once, and only hired a psychologist to evaluate guilt phase defenses (and not at the penalty phase). If the lawyer had investigated, he would have turned up a history of brutal prison rape and subsequent PTSD.
    Andrews v. Davis189th Circuit, 2019Mr. Andrews was sentenced to death after being convicted of three murders. No mitigating evidence was presented during the penalty phase of his trial. Information about Mr. Andrews not presented at trial included pervasive emotional, physical, and sexual trauma from birth. The 9th Circuit stated this case was similar to Porter where there was too much mitigating evidence that was not presented to now be ignored.
    Andrus v. Texas19U.S. Supreme Court, 2020The U.S. Supreme Court noted counsel did not look into or present the myriad tragic circumstances that marked Mr. Andrus’ life, including not meeting with family members other than his mother and father. The Court noted counsel performed virtually no investigation, and the untapped body of mitigating evidence revealed at the habeas hearing was too vast.
    • View popup
    Table 2.

    Cases Decided for the Government

    Case NameCourt and YearBrief Summary
    Brawner v. Epps205th Circuit, 2011Mr. Brawner claimed that he was denied effective assistance of counsel per Strickland, and that a thorough investigation of mitigating evidence, including his prior diagnoses of PTSD and depression, could have altered the sentencing trial outcome. The U.S. Court of Appeals for the 5th Circuit did not find prejudice under Strickland.
    United States v. Fields215th Circuit, 2014Mr. Fields sought a Certificate of Appealability (COA) on multiple claims, including that he received ineffective assistance from counsel based on failure to conduct a competent penalty phase investigation. The 5th Circuit denied a COA for this claim and found his counsel detailed Mr. Fields’ violent and tumultuous upbringing, including physical abuse at the hands of his mother’s boyfriend, attempted suicide at age fourteen, his mother getting shot by her boyfriend, and witnessing the suicide of a friend and his grandfather being run over by a drunk driver.
    Jordan v. Epps225th Circuit, 2014Mr. Jordan claimed ineffective assistance of counsel, partially on the grounds that counsel failed to pursue a PTSD evaluation from a doctor other than one expert. Though no doctor ever diagnosed PTSD in Mr. Jordan, the attorney for the fourth sentencing trial obtained affidavits from a psychologist and psychiatrist who both believed that Mr. Jordan likely would have met the criteria for PTSD if evaluated, given his repeated combat experience in Vietnam. The 5th Circuit agreed with the district court’s opinion that there was not a reasonable probability that a different doctor would have provided a more favorable evaluation.
    Nelson v. Davis235th Circuit, 2020Mr. Nelson argued that a thorough investigation of his past would have led to a postconviction expert’s attributing his destructive behavior to PTSD stemming from an abusive childhood, rather than antisocial personality disorder and psychopathy as had been diagnosed previously by another expert. The 5th Circuit stated counsel’s dependence on the prior expert testimony did not constitute ineffective assistance.
    Canales v. Davis245th Circuit, 2020The 5th Circuit found that the mitigating evidence for Mr. Canales was not sufficiently compelling that it would have established a substantial likelihood of a different result.
    Sheppard v. Davis255th Circuit, 2020Ms. Sheppard claimed her counsel’s performance was deficient because he neglected to call her, her mother, or her brother to testify about her character and the struggles she had endured. The 5th Circuit opined Ms. Sheppard did not show that the result of the proceeding would have been different if not for her counsel’s failure to present cumulative mitigating evidence.
    Pike v. Gross266th Circuit, 2019Ms. Pike filed a habeas petition on the grounds of her counsel’s alleged ineffective assistance and failure to discover mitigating evidence, including diagnoses of organic brain damage, bipolar disorder, and PTSD offered by a psychiatrist during a postsentencing examination. The 6th Circuit denied the petition.
    Anderson v. Kelley278th Circuit, 2020Mr. Anderson claimed his counsel ineffectively failed to present evidence on the biological limitations of the teenage brain, identify PTSD despite ample evidence of childhood abuse, and identify a history of fetal alcohol spectrum disorder. The 8th Circuit found Mr. Anderson’s counsel’s performance was not constitutionally deficient.
    Kemp v. Kelley288th Circuit, 2019Mr. Kemp petitioned for a writ of habeas corpus due to counsel’s alleged failure to investigate and present mitigating evidence about his childhood abuse, fetal alcohol exposure, and PTSD. The 8th Circuit concluded that counsel’s mitigation investigation fulfilled its obligations under Strickland.
    Rhoades v. Henry299th Circuit, 2010The 9th Circuit determined that the mitigating value of one mental health expert’s assessment that Mr. Rhoades experienced PTSD was lessened because his diagnosis did not satisfy the requirements of DSM-IV for this condition and there was no suggestion that Mr. Rhoades committed the acts while in any kind of PTSD-induced dissociative state.
    Payton v. Cullen309th Circuit, 2011Mr. Payton had no mitigation evidence presented during the penalty phase of his trial. Three mental health experts evaluated him before his trial and found that he had no evidence of organic brain pathology, had a serious personality disorder, and had abused drugs in the past, and they concluded he had no viable mental state defense.
    Zapien v. Davis319th Circuit, 2015Mr. Zapien was granted an evidentiary hearing on some of his ineffective assistance claims, in which he argued that trial counsel should have presented evidence of his psychiatric problems. It was unclear, however, whether Mr. Zapien actually had any form of psychiatric illness. The 9th Circuit did not consider it. Additionally, the court opined that there was no reason counsel should have known that Mr. Zapien had PTSD. As a result, counsel’s failure to introduce evidence of psychiatric illness did not render the performance inadequate.
    Mendoza v. Secretary3211th Circuit Court, 2014Mr. Mendoza filed a federal habeas petition asserting he was denied effective assistance of counsel, alleging his attorneys failed to investigate his mental health and background. The 11th Circuit opined that Mr. Mendoza’s trial counsel thoroughly investigated his mental health.
    Brannan v. GDCP Warden3311th Circuit, 2013The 11th Circuit ruled it did not find a reasonable probability that the result of sentencing would have been different if Mr. Brannan’s counsel had presented evidence his offense was related to his not being medicated, evidence regarding his PTSD diagnosis relating to his combat experience in Vietnam, and testimony from his treating psychiatrist.
    Gissendaner v. Seaboldt3411th Circuit, 2013The 11th Circuit agreed with the district court’s assessment that the social history composed by one expert during the state habeas trial was “biased towards uncritical acceptance of Ms. Gissendaner’s self-reports of traumatic childhood experiences” despite conflicting accounts from her family members which undermined her diagnosis of PTSD (Ref. 34, p 1333).
    Pooler v. Sec’y3511th Circuit, 2013The 11th Circuit affirmed the district court’s denial of Mr. Pooler’s petition. They deemed that the factual differences between this case and Porter were substantial and numerous. The 11th Circuit noted Mr. Porter’s counsel called only one witness and presented no mitigating evidence, while Mr. Pooler’s counsel called four mental health experts, a jail officer, one of his friends, and three of his family members. Much of the evidence presented to the jury would humanize Mr. Pooler, yet the jury still recommended he receive the death penalty.
    Jones v. GDCP Warden3611th Circuit, 2014Mr. Jones’s use of new mitigating evidence about his childhood and his mental health would have opened the door to a vast array of aggravating evidence that likely would have outweighed the mitigating evidence in this case.
    Pope v. Sec’y3711th Circuit, 2014The 11th Circuit found that counsel presented all mitigating evidence on behalf of Mr. Pope and that there was no Strickland prejudice.
    Tanzi v. Sec’y3811th Circuit, 2014Mr. Tanzi’s counsel retained two experts who had opposing conclusions regarding his mental health diagnoses. Mr. Tanzi argued his counsel failed to present consistent mental health testimony. The 11th Circuit believed that although the two experts offered disparate diagnoses, they agreed that Mr. Tanzi met the requirements of both statutory mental health mitigators, and that there was substantial nonstatutory mitigation.
    Anderson v. Sec’y3911th Circuit, 2014Mr. Anderson alleged counsel’s penalty phase performance was deficient because of their failure to uncover evidence that he was sexually abused as a child and had brain damage, borderline personality disorder, and PTSD caused by the sexual abuse. After reviewing the case, the 11th Circuit held that counsel’s failure to uncover and present evidence of sexual abuse was not deficient in the context of an otherwise thorough mitigation defense.
    • PTSD = posttraumatic stress disorder

    • DSM-IV = Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)

PreviousNext
Back to top

In this issue

Journal of the American Academy of Psychiatry and the Law Online: 50 (1)
Journal of the American Academy of Psychiatry and the Law Online
Vol. 50, Issue 1
1 Mar 2022
  • Table of Contents
  • Index by author
Print
Download PDF
Article Alerts
Sign In to Email Alerts with your Email Address
Email Article

Thank you for your interest in recommending The Journal of the American Academy of Psychiatry and the Law site.

NOTE: We only request your email address so that the person you are recommending the page to knows that you wanted them to see it, and that it is not junk mail. We do not capture any email address.

Enter multiple addresses on separate lines or separate them with commas.
PTSD and Trauma as Mitigating Factors in Sentencing in Capital Cases
(Your Name) has forwarded a page to you from Journal of the American Academy of Psychiatry and the Law
(Your Name) thought you would like to see this page from the Journal of the American Academy of Psychiatry and the Law web site.
CAPTCHA
This question is for testing whether or not you are a human visitor and to prevent automated spam submissions.
Citation Tools
PTSD and Trauma as Mitigating Factors in Sentencing in Capital Cases
Lee Hiromoto, Case Keltner, William Frizzell, Joseph Chien, Landy Sparr
Journal of the American Academy of Psychiatry and the Law Online Mar 2022, 50 (1) 22-33; DOI: 10.29158/JAAPL.210052-21

Citation Manager Formats

  • BibTeX
  • Bookends
  • EasyBib
  • EndNote (tagged)
  • EndNote 8 (xml)
  • Medlars
  • Mendeley
  • Papers
  • RefWorks Tagged
  • Ref Manager
  • RIS
  • Zotero

Share
PTSD and Trauma as Mitigating Factors in Sentencing in Capital Cases
Lee Hiromoto, Case Keltner, William Frizzell, Joseph Chien, Landy Sparr
Journal of the American Academy of Psychiatry and the Law Online Mar 2022, 50 (1) 22-33; DOI: 10.29158/JAAPL.210052-21
Reddit logo Twitter logo Facebook logo Mendeley logo
  • Tweet Widget
  • Facebook Like
  • Google Plus One

Jump to section

  • Article
    • Abstract
    • PTSD, Mitigation, and the Death Penalty
    • PTSD and Capital Postconviction Appeals
    • Ineffective Assistance of Counsel
    • Methods
    • Results
    • Discussion
    • Conclusion
    • Footnotes
    • References
  • Figures & Data
  • Info & Metrics
  • PDF

Related Articles

Cited By...

More in this TOC Section

  • Effects of Online Distance Learning on Violence Risk Knowledge and Competencies
  • Profiling Homicides Based on Impulsive or Proactive Natures in Male Schizophrenia Patients
  • Elder Financial Exploitation in the Digital Age
Show more Regular Article

Similar Articles

Keywords

  • death penalty
  • mitigation
  • posttraumatic stress disorder
  • trauma
  • stress

Site Navigation

  • Home
  • Current Issue
  • Ahead of Print
  • Archive
  • Information for Authors
  • About the Journal
  • Editorial Board
  • Feedback
  • Alerts

Other Resources

  • Academy Website
  • AAPL Meetings
  • AAPL Annual Review Course

Reviewers

  • Peer Reviewers

Other Publications

  • AAPL Practice Guidelines
  • AAPL Newsletter
  • AAPL Ethics Guidelines
  • AAPL Amicus Briefs
  • Landmark Cases

Customer Service

  • Cookie Policy
  • Reprints and Permissions
  • Order Physical Copy

Copyright © 2023 by The American Academy of Psychiatry and the Law