Ellen Rogers, a tall woman with straight, shoulder length red hair and clear green eyes, greets me at the door of her snug home on a quiet residential street. We sit at the dining room table that doubles as her work space and she calmly tells stories that are at once horrific and hopeful.
A death penalty mitigation specialist on capital defense teams since 1996, Rogers has conducted mitigation investigations for 33 aggravated murder cases, most of them death penalty cases. Rogers’ job is to find and present evidence as to why her client should not be put to death. That evidence may include mental or psychological problems, addiction or trauma.
Aggravated murder cases rarely go to trial. In an effort to avoid the death penalty, the defense may present mitigating facts in a settlement conference in which a judge meets with the prosecution and the defense. The goal of the defense is to get the client the best sentence possible given the facts of the case. Frequently, the defense is in the position of trying to negotiate life without parole or life with 30 years, anything but death.
Rogers’ clients are violent, damaged people who have done unspeakable things, sometimes to children. Someone is grieving the death of each one of these victims every minute of every day, while her clients, the people who killed them, are still alive.
And to keep them alive, Rogers learns everything she can about what led her client to commit the nightmarish acts of torture, abuse, mutilation and murder most of us can’t even imagine. Her investigations aren’t about establishing guilt or determining punishment. Her job is to find out what happened to this person that led him or her to commit crimes that make us wince and instinctively turn away rather than even think about them. But these people weren’t born monsters. They became who they are for many reasons. Rogers looks for those reasons.
Victoria Lewis: I spoke to a criminal defense lawyer about mitigation specialists and one of the first things he mentioned was their curiosity. Would you say you’re curious?
Ellen Rogers: I am curious. I grew up in a large family in Eureka, Calif. In those days you could go to the park and go off by yourself. I would go all over the place. I’d ask myself, why are trilliums only out during this time of year? Why won’t my brother eat the mud pie I just made and so carefully decorated for him? Now I ask myself, when I’m investigating a case, was it prenatal substance abuse, a developmental delay, child abuse or neglect, what else could it be? Always, always what else could it be?
V.L.: Looking at your resume it’s clear you’ve gone from one challenge to the next. Clinical supervisor of Edgefield Children’s Center, clinical supervisor of Parry Center for Children, mental health specialist for Polk County Mental Health, co-director of the Living – Dying Project, working with people with a life-threatening diagnosis. It doesn’t let up.
E.R.: I have chosen a path that has been challenging. I worked with people with AIDS in the Bay Area in 1984 when everybody was just dying. I didn’t have to do that. I worked with severely traumatized children. The other day I was thinking maybe I should have gone to work for a bank. But my father was the hardest working man I ever met. He died at 53 partly because of the way he worked. I didn’t come from a family with a lot of money or a lot of resources. I had to take care of myself from an early age. I like to work. I’m in a field that is never boring. I’ve had great teachers. I’ve learned so much from the other people in this field.
V.L.: You must talk to a lot of people.
E.R.: I talk to everybody – family members, old girlfriends or boyfriends, ministers, school teachers, DHS workers, former parole officers. We have to talk to them in person. We can’t conduct the interviews on the phone. Maybe I’ll talk to a distant cousin who hasn’t been involved with the client for 20 years. They’ll try to recollect and say, “Oh, they had the greatest dog. The dog was …” and I’ll say “Snappy.” And they say, “Oh my God.” I know more than almost any individual family member knows.
V.L.: Do you ever contact a family member who says, “I don’t want to talk about them. I don’t want to have anything to do with them?”
E.R.: Yes. I’ll give you an example. I hadn’t been able to get the mother of a client to answer the phone, so I showed up at her door. She said, “Defense or prosecution?” I said, defense. She said, “I don’t know why the prosecution never comes to my door. I’d execute him myself. Get off my property.” The attorneys told me, “You have to try to get her to talk to you.” I came back and she said she was going to get a restraining order against me. I knew from other people that she was in a 12-step program. I wrote her a letter and suggested she go to her sponsor and talk about how she was going to feel if her son was given the death penalty and she had refused to talk to me. After she saw her sponsor, she told me I could have an hour of her time. Before it was over I probably spent 40 or more hours with her.
V.L.: You often work with clients for long periods of time, don’t you?
E.R.: I’ve been on one case for six years. You see the client a couple of times a month. Sometimes more. Sometimes you’ve asked everything you can ask, but you’re just keeping them calm. There is really no one they can talk to. If they talk on the phone it’s recorded, if they write to anyone about their case it’s copied, if anyone visits it’s recorded. If they talk to other inmates, sooner or later there will be an informant. We tell them, don’t talk to anybody about your case. What else do they have to talk about? The defense team has to go see them so they have someone to talk to. The attorneys have a bunch of other things to do. It’s our job to hold the client together. The attorneys haven’t traveled around the country and met everyone.
V.L.: You must have had to come to terms with your own life in order to listen so deeply to other people.
E.R.: There has to be an emotional honesty that you bring. I can’t just expect the people we represent to be accessible if I’m not. People know if you are hiding. And they will not come out for you.
V.L.: Do some people really have to struggle to open up to you?
E.R.: I’m OK with silence. We have time. I may know that someone was repeatedly raped by their grandfather and I’m never going to mention that until we have a very solid relationship. People trust you. They really trust you. Eventually in a close relationship people are going to talk to you. They aren’t going to censor themselves. Even though it could be used in their defense it’s still painful.
I’ve worked with people who’ve said they wanted to enter a plea just so their mother or family member didn’t have to admit to what they had done to them. It’s not uncommon that they’re protecting someone in their family. People say, “Leave my family alone.” And I say, “I can’t.”
V.L.: Can you think of a case that was so awful you just wanted to walk away?
E.R.: These cases are difficult and the better you get at what you do, the harder the cases are that you get. The normal murders, the drug deals gone wrong, of course they are tragic, but it’s not someone who is abducted and mutilated, cut into fifty pieces, it’s not a child or a completely innocent person who randomly gets in the way of this incredible violence.
People do violent, reckless things, such painful things they have lost their right to live outside of prison. Sometimes someone’s life story is so terrible, so frightening, they are never, ever going to be OK. There is no excusing this behavior but sometimes you can say, “I see how this person got here.”
I have a client who’s difficult to talk to because he’s angry about a lot of things. It’s exhausting to be bombarded by his anger week after week. So I started talking to him about Thuggy, a squirrel in my yard, and my partner’s ongoing battle to keep Thuggy from eating the birdseed. The client liked the name Thuggy and that the squirrel always won our battles. He asked for a photo of Thuggy. He drew a picture of Thuggy and gave it to me. I framed it and sent him a photo of it.
V.L.: (Ellen shows me a detailed line drawing of a feisty little squirrel.) You see people change.
E.R.: That’s why my job doesn’t drive me crazy and depress me. It is this hope. People change over time. I’m grateful for that.
V.L.: You see these people differently from the rest of us.
E.R.: I think we are all a lot closer to being similar than we would like to admit. We are all broken in some ways. But some of these people are shattered and no one has ever just let them talk about it. My job is to find out why this happened. Not to sit in judgment. It’s the Christian concept of grace.
V.L.: Who are your role models?
E.R.: Other people in the field are wonderful. I met Sister Helen Prejean at a death penalty workshop. She’s the nun from the movie Dead Man Walking. She is very, very funny. She was supposed to meet Susan Sarandon, the actress who played her, in a restaurant. She was standing there, looking around and Susan Sarandon came up and said, “Hello, don’t you recognize me?” And Sister Prejean said, “No, I don’t watch movies.”
V.L.: When you talk about your clients you don’t dehumanize them. You have the attitude that these people are worth talking to.
E.R.: I do have that attitude. Both of my parents believed in the death penalty but I never did. I remember in high school we were given a debate topic and mine was the death penalty. I have always felt that the death penalty diminishes us as a society. What does it cost me to care about these people? What can it hurt? I can’t write these people off.
The NOTHING MORE HOPEFUL series originates from a workshop taught by Martha Gies. “I remembered my friend Sr. Rosarii Metzgar once telling me she believed all the terrible news with which we are daily battered must surely be offset by small and unseen acts of good.” Gies resolved to enlist some writers who would hunt down and write those stories.