Mitigation and point of view

Whether a client’s goal is a dismissal, an acquittal, a reduced charge or a reduced sentence, I’ve found that mitigation is an essential part of preparing the case.  We now have one paralegal who is responsible for gathering documents, letters, certificates, degrees, photographs – any information available on the client’s background and the client’s character, and then putting it together in a format that is easy to read.  Information can come from the client, the client’s family, neighbors, teachers, church members, anywhere.

Obviously this is an easier task for some clients than for others, but for some clients what we find is amazing.  It is an important part of getting to know our client, what makes him or her tick, what his motivations are, what his background is, what his potential is, and what his goals and his dreams for the future are.

In the right case, mitigation materials can be used to show the prosecutor who the client is – some prosecutors tend to demonize defendants, and it helps to remind them that this is a human being they are dealing with, in many cases not so different from you and I.  In the right case, the materials collected may help when talking with a victim or witness, or arresting officer.

The mitigation materials can provide an outline for details about the client that a jury needs to hear during trial.  If the client decides to enter a plea, or if the worst occurs and the client is found guilty after a trial, the work has been done and is ready to present to a court at sentencing.

In Carl Bettinger’s book Twelve Heroes, One Voice, he has a passage where he discusses the importance of point of view in storytelling, and he suggests that mitigation shifts the point of view to that of the client:

Point of view is important in both civil and criminal stories.  According to Rick Kammen, one of the preeminent death penalty attorneys in the United States, the focus of the mitigation portion of a death penalty trial is to shift the point of view from that of the victim to that of the killer.

The idea of mitigation in a death penalty trial is to explore what made the defendant what he is, what shaped the defendant and brought him to the point where he could have done the terrible deed that the state is asking the jurors to kill him for.  Mitigation in most other criminal cases is usually seen as persuading the court, at sentencing, that the defendant really is a good person, that the deed he is being sentenced for was out of character and not likely to be repeated, that the defendant really does have redeeming qualities.

Mitigation is so much more than a thing you do at sentencing  – the process of investigating a client’s background and putting together the positive things that are happening or have happened in a client’s life helps you to understand who the client is, and helps you to help others understand who the client is.  The prosecutor and police are investigating only the negative things in the client’s past, through interviews or at least through their criminal history – if we don’t take the time to investigate the positive side of a client’s life no one else will.


2 Responses to “Mitigation and point of view

  • scott webre
    8 years ago

    excellent article. there is alot of crossover from what you describe to what we do in civil cases in presenting the “story” of the plaintiff, which is essential if the jury is going to connect with us and be motivated to return a verdict that serves justice. this stuff puts a jury in a position to care. if they care, they can help. If they don’t care, they usually won’t. Rick Friedman talks alot about this in Polarizing the Case, which is an absolute brilliant book applicable to civil work. don’t know how much application it would have for criminal practitioners, but it would not surprise me if you would find helpful and applicable tools in there.

  • Thanks Scott. I haven’t read polarizing the case, but I’ve read some articles about it. I’m sure that a lot of Friedman’s ideas are adaptable to criminal defense trial work, and we have some prosecutors that are using it in trial – purposefully or not I don’t know. I think books like polarizing the case and Reptile are important to read, if only to be able to counter it when the prosecution tries to use it.

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