SC Administrative Law Court Decisions

STATEMENT OF THE CASE

In the above-captioned case, Petitioner Margaret O’Shea seeks a ruling that her work as a mitigation specialist in death penalty cases does not require licensure or, alternatively, an order directing Respondent South Carolina Law Enforcement Division (SLED) to renew her private investigator license under Title 40, Chapter 18 without review of the records in her possession, which, she argues, should be protected by the work product doctrine. Since she is unable to work during the pendency of this matter, Mrs. O’Shea requested an expedited hearing. After notice to the parties, a hearing was held at the Administrative Law Court (ALC or Court) on April 24, 2008. For the reasons outlined below, I conclude that a mitigation specialist, such as Mrs. O’Shea, who contracts exclusively with attorneys working on death penalty cases, need not be licensed by SLED as a private investigator.

FINDINGS OF FACT

Mitigation Specialist

1. Mrs. O’Shea has worked as a mitigation specialist in death penalty cases since 2001. In this capacity, she assists in investigating, analyzing, and presenting mitigating evidence during the penalty phase of capital murder trials. She also works on related appeals and post conviction relief (PCR) proceedings. As a mitigation specialist in the context of a death penalty case, she identifies psychological issues, interviews family members and others, compiles documents, coordinates experts, suggests trial strategies, prepares a detailed annotated chronology, and often prepares a genogram through several generations to build a case for mental retardation or develop social history. She drafts ongoing memos to the defense attorneys regarding her findings, drafts memos of all interviews, outlines case strategy, and suggests experts to use. She prepares experts for court, directs their focus, and works on exhibits for trial. Her job is to gather as much information as she can about the defendant, and then the attorneys choose what information to provide to the witnesses. The mitigation specialist develops background facts to understand how the individuals in the defendants’ often highly dysfunctional families relate to each other.

Like a paralegal, the mitigation specialist is part of the litigation team. She is also the liaison with the defendant’s family. Her interviews with the criminal defendant are ongoing, extensive, and crucial to her work and trial preparation. Her work has a strong analytical component as she puts together the defendant’s social history. Case strategy is communicated to counsel in both verbal and written form; extensive conversations are usually memorialized, either by the mitigation specialist or the attorney. Thus, the files in her possession belong to the respective attorneys for whom she works.

2. Mrs. O’Shea has worked as mitigation specialist on seventeen cases with the limited pool of lawyers certified to provide death penalty defense in South Carolina. She charges $50 per hour and half-rate for driving time, but she usually reduces her bill before submitting invoices for court approval and payment to stay within budget.

3. Before becoming a mitigation specialist, Mrs. O’Shea was an investigative reporter for thirty years for The State newspaper and other publications, with significant experience on high profile stories and court cases. Her journalistic endeavors garnered numerous awards: four times nominated for the Pulitzer Prize, three times South Carolina Journalist of the Year, two times won The State’s Gonzales Award for Journalistic Excellence, and 115 other awards from various civic and professional associations. Though SLED initially denied her application for a private investigator’s license for lack of experience, it issued the license after Mrs. O’Shea provided information on her extensive investigative journalism background. Based on concerns that arose under the previous licensing law, SLED will not license anyone who does not first demonstrate the necessary skills and experience to competently perform the duties of a licensed private investigator.

4. Mrs. O’Shea works exclusively as a mitigation specialist.^[1] In each capital case, she is retained by the chief attorney and then appointed by the presiding judge, who approves her funding and reviews her invoices. Mrs. O’Shea tracks her time and submits invoices to the attorneys, who submit them to the court for approval and then send them to the Office of Indigent Defense for payment. She keeps a running invoice as she works on a case and then finalizes it before submitting it for approval and payment. To be appointed as a mitigation specialist in a capital case, one has to be chosen by the defense attorney and the presiding judge has to be satisfied with the specialist’s work and training. As such, there is extensive judicial oversight of mitigation specialists’ work product.

5. When Mrs. O’Shea first became a mitigation specialist, she sought licensure as a private investigator, based in part upon the legal advice of Teresa Norris, Executive Director of the Center for Capital Litigation, and based in part upon her expectation that a private investigator license would be a good credential when she had little prior experience as a mitigation specialist. Mrs. O’Shea now avers that she no longer wishes to be licensed by SLED.

6. This court takes judicial notice that the term “mitigation specialist” appears on Westlaw in 474 cases (as of May 13, 2008).^[2] The vast majority of these cases are criminal cases in varying procedural postures: direct appeal, PCR or habeas corpus. This court also takes judicial notice that the term “mitigation specialist” is a specific classification at South Carolina’s Office of Indigent Defense. In fact, presenting evidence in mitigation is a constitutionally mandated part of the death penalty defense. See Williams v. Taylor, 529 U.S. 362, 396-99 (2000).

SLED File Review

7. Because Mrs. O’Shea could not afford to pay the license renewal fee, her private investigator license expired on September 16, 2007. She had fallen down stairs and broken her collarbone, as a result of which she could not drive or type. She also was dizzy and lost all vision in her left eye within one month, resulting in cataract surgery on both eyes. She received treatment without health insurance, while her conditions rendered her unable to work. Upon her failure to renew, SLED’s computer tagged her for file review to ensure that she was not performing private investigator duties without a license. She refused to allow SLED to review the files in her possession, asserting that they were protected by the attorney-client privilege and the work product doctrine. She subsequently paid the fee and submitted her license for renewal in late 2007. However, SLED refused to renew her license based on her refusal to allow SLED to review the files in her home office.

8. The other way that files are tagged for SLED’s review is if a complaint is filed with SLED regarding the investigator’s work or billing. That is not applicable here. There have been no complaints about Mrs. O’Shea’s work or billing. Two attorneys showed up in person to protect their files when the SLED investigator attempted to review the files at her home office. One attorney demanded that all files be turned over to his office immediately.

9. SLED takes the position that its agents must have access to all files in the possession of a private investigator to ensure that he or she is performing the work for which the clients are being billed and that if an investigator refuses to disclose any file, she must have something to hide. Mrs. O’Shea tried to work with SLED to provide limited disclosure of certain records for accounting purposes. When she asked one agent what records he wanted to review, the only answer given was “all records.” Based on SLED’s response, she contacted the lawyers on the respective cases, who all objected strongly to her disclosing anything in the files to SLED. When she offered redacted records, SLED quit communicating with her.

10. There are six mitigation specialists practicing in South Carolina. Four or five are licensed as private investigators by SLED. SLED has never tried to review files in the possession of any other mitigation specialist.

Work Product Doctrine

11. SLED’s officers and agents who testified at the hearing were not aware of the duties of a mitigation specialist and therefore did not give any deference to the sensitivity of the work performed or deem it necessary to allow for protection of the confidentiality of the files in Mrs. O’Shea’s possession.

12. The files in Mrs. O’Shea’s possession belong to the attorneys for whom she works and to the clients they represent. They are not her personal files.

13. As a result of SLED’s insistence that Title 40, Chapter 18 gives it unfettered access to all information in the files in her possession, Mrs. O’Shea has been placed in a Catch-22. She faces the possibility of administrative sanctions and criminal prosecution if she continues her chosen work as a mitigation specialist without being licensed to operate a private investigation business. And the attorneys certified in death penalty litigation have threatened to sue her and to stop using her services if she opens their files for SLED’s review.

CONCLUSIONS OF LAW

1. Jurisdiction is vested in this court under S.C. Code Ann. § 40-18-130(C) (Supp. 2007) and the Administrative Procedures Act (APA), S.C. Code Ann. § 1-23-310 et seq. (2005 & Supp. 2007).

2. A person who desires to operate a private investigation business in South Carolina must apply for a private investigation license from SLED. S.C. Code Ann. § 40-18-70(A) (Supp. 2007). As used in Chapter 18 of Title 40 of the South Carolina Code, “private investigation business” means

engaging in business or accepting employment to obtain or furnish information with reference to the:

(1) identity, habits, conduct, business, occupation, honesty, integrity, credibility, knowledge, trustworthiness, efficiency, loyalty, activity, movement, whereabouts, affiliations, associations, transactions, acts, reputation, or character of a person;

(2) location, disposition, or recovery of lost or stolen property;

(3) cause or responsibility for fires, libels, losses, accidents, damage, or injury to persons or property; or

(4) securing of evidence to be used in a criminal or civil proceeding, or before a board, an administrative agency, an officer, or investigating committee.

S.C. Code Ann. § 40-18-20(A) (Supp. 2007).

3. One of the prerequisites to becoming licensed to operate a private investigation business is at least three years’ experience as one of the following: (a) a private investigator employed by a licensed private investigation agency; (b) an investigator for a law firm, a government agency, a private corporation, a nonprofit organization, or in a capacity that SLED determines has provided the requisite investigative experience; or (c) a sworn officer with a federal, state, county, or municipal law enforcement agency. S.C. Code Ann. § 40-18-70(E)(9) (Supp. 2007). Contrary to SLED’s assertion, the statute does not require these classes of persons to be licensed to operate a private investigation business. Rather, this section merely outlines the qualifications and types of experience required for a person who desires a license to operate a private investigation business. Experience in one of these professions is a prerequisite to obtaining a license.

4. While in the performance of their duties, attorneys are specifically exempt from licensure under Title 40, Chapter 18. S.C. Code Ann. § 40-18-140(3) (Supp. 2007). That is, attorneys in practicing their profession are not required to obtain a private investigation license even though they may perform some of the same duties broadly outlined in the statutory definition of private investigation. Attorneys rely extensively on their agents and office staff to prepare for litigation. It naturally follows that an attorney’s agent is similarly exempt from licensure. As a mitigation specialist, Mrs. O’Shea is an agent of the attorneys performing work exclusively to be used in preparation for capital litigation.

5. The ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases twice state that a mitigation specialist is an essential component of the capital defense team. See Guidelines 4.1(A)(1) (“The defense team should consist of no fewer than two [qualified] attorneys . . . and a mitigation specialist.”) & 10.4(C)(2)(a) (lead counsel should assemble a defense team to include at least one mitigation specialist), 31 Hofstra Law Rev. 913, 952, 959-960, 999-1000 (Feb. 2003). The commentary to Guideline 4.1 at page 959-960 explains more fully the role of a mitigation specialist.

Mitigation specialists possess clinical and information-gathering skills and training that most lawyers simply do not have. The mitigation specialist compiles a comprehensive and well-documented psycho-social history of the client based on an exhaustive investigation; analyzes the significance of the information in terms of impact on development, including effect on personality and behavior; finds mitigating themes in the client's life history; identifies the need for expert assistance; assists in locating appropriate experts; provides social history information to experts to enable them to conduct competent and reliable evaluations; and works with the defense team and experts to develop a comprehensive and cohesive case in mitigation. The mitigation specialist often plays an important role as well in maintaining close contact with the client and his family while the case is pending. . . . For all of these reasons the use of mitigation specialists has become “part of the existing ‘standard of care”’ in capital cases, ensuring “high quality investigation and preparation of the penalty phase.”

Several law review articles explain a mitigation specialist’s role in the capital defense team.

In general, mitigation specialists are those “qualified by knowledge, skill, experience, or training as a mental health or sociology professional to investigate, evaluate, and present psychosocial and other mitigating evidence to persuade the sentencing authority . . . that a death sentence is an inappropriate punishment.” Mitigation specialists represent “a relatively new area of expertise.” Though a comparatively novel profession, an increasing number of defense attorneys are employing mitigation specialists. Considering its embryonic state, there is not a licensing authority that dictates how one becomes a mitigation specialist. . . . Thus, the mitigation specialist's primary role is to provide the attorney with an all-inclusive social history of the client, which includes identifying significant, positive and negative, traumatic life events. . . includ[ing] information on the parental figures in the client's life . . . [and] the social factors that made the client different from siblings and other [sic] who may have been subjected to the same environment.

Another essential role of the mitigation specialist is to assist attorneys in communicating more efficiently with the defendant, his or her family members, and other significant mitigation witnesses. Similarly, if not more importantly, mitigation specialists are responsible for acting as liaisons between other mental health experts (i.e., psychologists, psychiatrists) and defense counsel. When appropriately utilized, mitigation experts can aid both counsel and other mental health experts.

Besides their mental health and social work responsibilities, mitigation specialists must contend with various legal responsibilities. For instance, they are typically required to write a court-worthy “formal report . . . that includes a vivid and concise articulation of the biopsychosocial dynamics that shaped the client's life and behavior.” Likewise, mitigation specialists must always be prepared “to testify about their findings.”

Craig M. Cooley, Mapping the Monster’s Mental Health and Social History: Why Capital Defense Attorneys and Public Defender Death Penalty Units Require the Services of Mitigation Specialists, 30 Okla. City U. L. Rev. 23, 59-62 (Spring 2005). See also Pamela Blume Leonard, A New Profession for an Old Need: Why a Mitigation Specialist Must be Included on the Capital Defense Team, 31 Hofstra L. Rev. 1143 (Summer 2003); Daniel L. Payne, Building the Case for Life: A Mitigation Specialist as a Necessity and a Matter of Right, 16 Cap. Def. J. 43 (Fall 2003).

“Mitigation Specialist is a fairly new job title for this role which underscores a long-standing need. It is generally recognized that, in the complex litigation that today marks capital trials, a mitigation specialist must be included in the capital defense team.” Roark Reed, Are Law Students Capable Of Delivering A “Reasonable Investigation” As Required By The U.S. Supreme Court In Capital Cases?, 13 L. & Bus. Rev. of the Americas 923 (Fall 2007). The mitigation specialist’s job is “discovering and then communicating the complex human reality of the defendant’s personality in a sympathetic way.” Russell Stetler, Column: Capital Cases, Champion 61, 62 (March 2007). “[C]apital defense team members giving undivided attention to the client’s life story have come to be called mitigation specialists. Their duties and ethical obligations are defined purely by the capital defense function. They are not part of any other freestanding profession.” Id. (emphasis added).

6. The only purpose for the mitigation specialist is to assist attorneys in the defense of death penalty cases. As such, when Mrs. O’Shea engages in this work, she acts as an agent for defense counsel and her performance is monitored by extensive judicial oversight. Although her work for defense counsel is on a case-by-case basis, she is no less an agent of defense counsel than a salaried paralegal, investigator, or associate for purposes of Title 40, Chapter 18. It stretches legislative intent to require defense counsel’s paralegal, investigator, or associate to obtain a private investigation license under S.C. Code Ann. § 40-18-70(A) (Supp. 2007). In fact, subsection (E)(9) implies that a law firm investigator is not required to obtain a license under subsection (A). Rather, a certain amount of experience as a law firm investigator qualifies a person for licensure if he or she desires to begin operating his or her own private investigation business.

7. Because she is acting as an agent of defense counsel while performing her duties as a mitigation specialist, Mrs. O’Shea is exempt from the requirements of Chapter 18 of Title 40 pursuant to the attorney exemption under S.C. Code Ann. § 40-18-140(3) (Supp. 2007).

8. Even if a mitigation specialist could not be considered exempt from the requirements of Title 40, Chapter 18, the mitigation files in Mrs. O’Shea’s possession are not subject to review by agents or employees of SLED because those files belong to the attorneys with whom she works and, ultimately, to their clients. As such, those files are protected by the attorney work-product privilege, also known as the attorney work-product doctrine.

9. The United States Supreme Court has held that the work-product doctrine is “a qualified privilege for certain materials prepared by an attorney ‘acting for his client in anticipation of litigation.’” The work-product privilege must extend to “material prepared by agents for the attorney as well as those prepared by the attorney himself.” U.S. v. Nobles, 422 U.S. 225, 237-38, 95 S.Ct. 2160 (1975). In U.S. v. Johnson, an annotated chronology prepared by a mitigation specialist that was sent to a third party was seized by prison mailroom personnel and turned over to the state. 378 F. Supp. 1041 (N.D. Iowa 2005). On the defense’s motion for return of privileged material, the court held that the mitigation specialist’s work product was protected within Fed. R. Crim. P. 16(b)(2), since it was prepared to assist in the mitigation case. See id.

The court further held that inadvertent disclosure to a third party did not automatically waive the work product privilege, in light of its central role in the adversary system. However, the court noted that courts have disagreed on this point and that most lower courts’ inquiry as to whether the privilege was waived focused on whether the third party disclosure “substantially increases the likelihood that an adversary will come into possession of the material.” Id. at 1047. SLED maintains that its internal policies prohibit employees of its regulatory division from sharing privileged information with other divisions of SLED and that, therefore, the privileged information in the files possessed by Mrs. O’Shea will not be disclosed to anyone responsible for criminal investigations or prosecutions. However, whether the discovery of privileged information by SLED’s regulatory division substantially increases the likelihood that the adversaries of Mrs. O’Shea’s clients will come into the possession of the material is a question that I need not decide. The very potential for waiver of the privilege militates against SLED’s review of the material. Mrs. O’Shea’s disclosure of the material to a third party such as SLED could likely waive the privilege and render the material discoverable by the government in a criminal prosecution.

Even if the potential for waiver of the work product privilege were not a concern, the privilege acts in its own right as a limit on the investigative power of an administrative agency. See Upjohn Co. v. U.S., 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981) (quoting U.S. v. Euge, 444 U.S. 707, 714, 100 S.Ct. 874, 879-880,63 L.Ed.2d 741 (1980) (stating “the obligation imposed by a tax summons remains ‘subject to the traditional privileges and limitations’” and holding that the work product doctrine applies to Internal Revenue Service summons and reasoning that nothing in the language of the IRS summons provisions or their legislative history suggests an intent on the part of Congress to preclude application of the work-product doctrine)); Comm’n on Human Rights & Opportunities v. Sullivan, 398 A.2d 776 (Conn. Super. App. 1978) (explaining in dicta that, even with respect to business records, the investigative power of an administrative agency is not unrestricted and stating that the inquiry must (1) be reasonably necessary for performance of the agency’s duties; (2) be germane to the subject matter of the investigation; (3) not be unduly burdensome; and (4) not trespass upon any privilege).

10. This court is cognizant that SLED may, at times, need to review files in the possession of an unlicensed person to ensure that he or she is not operating a private investigation business. However, if that person asserts that certain files contain privileged information, SLED may not inspect them without first obtaining a court order, based on probable cause, authorizing the inspection. See U.S. Const. amend. IV; S.C. Const. art. I, § 10 (prohibiting unreasonable searches and seizures and requiring search warrants to be based on probable cause).

11. Because her work as a mitigation specialist does not require licensure under Title 40, Chapter 18, there is no need for SLED to review the files in her possession to ensure that she is not operating a private investigation business without a license.

ORDER

Mrs. O’Shea as a court appointed mitigation specialist on death penalty cases who falls within the attorney exemption as the attorneys’ agent need not be licensed as a private investigator. As an independent ground, the files in her possession are not subject to SLED’s review because they are protected by the work product doctrine.

THEREFORE IT IS HEREBY ORDERED that SLED shall not require Petitioner Margaret O’Shea to obtain licensure under Title 40, Chapter 18 of the South Carolina Code in order for her to continue her work as a mitigation specialist.

IT IS FURTHER ORDERED that SLED shall not be allowed to inspect the files in Mrs. O’Shea’s possession.

AND IT IS SO ORDERED.

June 4, 2008 JOHN D. GEATHERS

Columbia, South Carolina Administrative Law Judge

1205 Pendleton Street, Suite 224

Columbia, South Carolina 29201-3731