Learning
& Presenting the “Why”: Effective Mitigation in Criminal Cases
BY: Victoria Rusk, Mitigation Specialist
and graduate of TLC’s Death Penalty
Seminar in 2011 and 2013
rusk.victoria@gmail.com (Article was published in the Fort Bend
County, Texas Criminal Defense Newsletter, Winter 2013-2014 edition.)
Mitigation in the context of criminal proceeding is not touchy-feely,
sentimental, whining, wailing, tugging on the heart strings boloney. Mitigation
is a very real and practical presentation regarding all the facts and circumstance
of the defendant’s background and history in relation to their current case. It
is not an excuse. It is an explanation. From criminal to immigration law,
mitigation is something only the defense can bring to the table. It is
mandatory in capital cases because of the lethal punishment aspects. However, a
majority of cases confront a punishment/ sentencing phase and attorneys are obligated
to prepare for it. {Milburn v. State}
{Shanklin v. State} If knowledge is power, then this information
is the light switch.
Multipurpose Tool
Mitigation can be utilized in every facet of court
proceedings: bond hearing, grand jury packets, PSI, plea negotiations, trial
and more. Mitigation is most beneficial to prevent trial (PSI, pleas
negotiations). However, sometimes trial is inevitable, so it is best to retain
a mitigation specialist from the start. Mitigation investigation provides the
attorney with more information about the case and the client. This form of
empathy can create a better attorney-client relationship, which can only
benefit the outcome. Mitigation
specialists can provide immeasurable support in interviewing and obtaining
support material from those who have known the client best and longer than the
prosecutor, the judge or the probation department. One of the main purposes of mitigation is to
individualize each case and each defendant to determine punishment. For every aggravating factor there is a
mitigating factor to explain it or defend it.
Presenting mitigation can save years in the sentencing phase or in plea
negotiation. It can also exclude lawyers from a potential IAC claim. {Moore v.
State}
Power of Why
Mitigation is the why.
Experience demonstrates to us that not
only do the prosecutors and jurors, both grand and petit, want to know what
happened, but they want to know why. The
why looks to the past as well as to the future, so that whatever the cause for
this criminal conduct, it needs to be named and eliminated to avoid a
recurrence. After interviews with
family, friends, neighbors, teachers, employers, doctors, counselors, etc. the
pieces of the puzzle come together. Combine that with supporting records from
various sources and you have a solid defense on how people become who they are.
Information flows in from many directions and a mitigation specialist will
organize it. Once you have this information, it is much easier to get an expert
on board to testify on such mental disorders and/ or intellectual disabilities.
Experts appreciate and utilize mitigation reports because they learn behaviors
and characteristics of the client which very likely explains the circumstances
of the crime.
Client Relations
The specialist’s field work symbolizes a quality
defense. Surprisingly, many clients
don’t know their own story or have never been asked to tell it. When a client
realizes how their actions were influenced or supported by dependent
conditions, it influences future decision making; including the decision on
whether to plead or not. Mitigation builds a rapport with your client without
extensive leg work. Since a mitigation specialist is an extension of the
attorney, he/she is visiting the client, their family and potential witnesses,
reviewing records and developing the story. Mitigation investigations not only
unravel the client’s story but also the story of the parents giving a name to certain
actions, behaviors, circumstance, etc. Those components assist an expert in
drawing conclusions. There are times
when an expert is not hired because the mitigation report is enough to prevent
trial. Mitigation has the potential to
build strong and positive client relations which results in more effective
negotiations.
Mitigation is not miraculous. However, when used properly it
is impressive to see how information shifts the mindset of another person. It allows the attorney to concentrate on the
case and to present the case in its best light.
Conclusion:
- Mitigation in non-capital cases is necessary and proper defense. Case law supports that. Where there is a will, there is a way.
- Mitigating factors are effective negotiating tools in all aspects of a court proceeding. Depending on the case, the client and the circumstances, mitigating factors are strategically used for the best defense.
- Mitigation Specialist versus Mitigation Expert. Experts testify and a mitigation specialist is a defense team member under attorney-client privilege. Mitigation specialists collect the information needed to hire an expert, assist the expert with records and reports and support attorney-client relations.
- A mitigation specialist starts at $75.00 per hour. In a non-capital case, twenty hours is a good starting point. In mitigation, you don’t know what you will discover or when you will discover it.
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