Mitigation in criminal cases really CAN make a difference!

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In my fourteen years of practice, I have religiously adhered to the principal that the way you get excellent results for your clients is by dismantling the prosecution’s case on a factual level. In other words, I prepare every case for trial from day number one, knowing that either the prosecutor will wind up offering my client a plea bargain that he/she can’t refuse, or we’ll be ready to try the case before a jury. It’s a win-win strategy. However, I was reminded today of the importance of demonstrating that, aside from whatever an accused may have done, he/she is also making a positive contribution to society.

Today I was in court on a fairly typical DUI case, insofar as the defendant was the one in the driver seat, and the chemical testing all came out at a .10% blood-alcohol content. Given that the penalties for DUI are proscribed by statute, and therefore inflexible, plus the fact that prosecutors statewide are cracking down on DUI cases, we thought that our options for plea negotiations were limited, and have been working up the case for trial.

In this case, however, my client has very many positive things going on in life outside of this case. We thought we would take a whack at pitching my client to the judge, in chambers and off-the-record, and was it ever revealing!

After presentation to the judge of my client’s community service work, educational accomplishments, professional accomplishments, and letters of recommendation, the judge wound up getting behind us, and strongly suggesting to the prosecutor that this was an “exceptional” case. The judge doesn’t have the actual authority to reduce the charges, but the judge’s mere position on the bench can be a very persuasive factor for reduction of charges.

This judge, behind closed doors and off-the-record, really let it fly. He told us, “you know as well as I do that most of the people who come through here are ‘losers’ who don’t lift a finger to do what they are supposed to, nor do they ‘bother’ to do anything to make a positive contribution to society.” Ouch!! While it stings to hear that, I fully believe it reflects the true opinion of most prosecutors and judges who are, far more often than not, former prosecutors themselves. Of course we–members of the defense bar–do what we do because we see all the positive things our clients do, and don’t view them through that pessimistic filter.

However, this was a reminder and an eye-opener for me. I considered clients in the past who I have “packaged” for the prosecutor and the judge, and recall both a second-offense commercial burglary case and a possession of mutliple machine-gun case where the facts were not favorable for the defendant, at all, but the case wound up with excellent results. Furthermore, it is the responsibility of the attorney to round up as much mitigation material as possible, in addition to factually working up a case. It occurs to me that judges see defendants this way in part because their lawyers are doing nothing to educate anyone otherwise.

You don’t need to be a licensed professional or have a doctoral degree to present mitigation evidence. All educational and work-related efforts count! Involvements in church, volunteer activities, family ties, responsibilities and obligations, rehabilitation from anger or substance-abuse issues, rehabilitation from anything, military service, involvement in one’s kids schools, taking care of aging parents, helping out anyone, anywhere, and in general, doing anything that has a positive impact on the community can make a difference in how the prosecution can view a defendant, and a case. It can change the filter through which prosecutors view things when they file charges, and, ultimately, affect the result of the case.

You need a lawyer who is going to work the mitigation angle on cases, in addition to the factual angle, and that is what we do here at the Law Offices of Lynda Westlund. Please contact us anytime as, no matter how bad things may seem, we can help you!

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