By Collin County Criminal Defense Attorney Jeremy Rosenthal
Today I’ll talk about a topic many of my colleagues avoid with clients — at least initially. Punishment or mitigation can be a scary topic but the importance goes without saying.
I’d like to think those who know me know I’m not a push-over on trying to get an acquittal. Acquittal is always the first option. But in any case you have to have a back-up plan.
Punishment or mitigation (reduction of the severity of punishment) occur on two general occasions in cases I handle. These are in negotiations with the prosecutor and, if necessary, in a punishment phase of a trial after someone has been found guilty.
Misdemeanor Punishment/ Mitigation
With most misdemeanors I’m primarily concerned with the collateral consequences of the criminal action. I’m more worried about the job or promotion you’ll be facing in 10 years than I am with whether you will be doing 20 or 30 hours of community service.
Misdemeanors do carry potential jail sentences (class b misdemeanors are up to 180 days in the county jail and class a’s are up to one year). In Collin County, though, most people facing punishment on misdemeanors are facing probation sentences rather than jail barring criminal history — or someone’s personal preference to serve jail instead of be on probation.
Being of good moral character with little or no criminal history does matter and it’s my job to make sure the prosecutor and/or judge knows this about you. My primary use of it, though, is focused on making sure we can get your arrest either non-disclosed or expunged.
Felony Punishment/ Mitigation
I’m convinced the Defense side has the upper hand in felony punishment though often the underlying facts of the charge might be difficult.
This is because my client is a living, breathing three-dimensional human being who is worthy of being understood and being cared about. The lawyer for the state only has a flat, 11 x 8 inch file.
Obviously someone facing felony punishment has been found guilty of doing something hurtful, thoughtless or distasteful. But your lawyer cannot allow the punishment phase of a felony trial to be solely about the facts of the charge or other previous bad acts by the accused.
No one would want their life to be judged based on the worst decision they’ve ever made. It’s not fair.
I believe in telling the jury or judge stories which show character through friends, family and other acquaintances who might have little reason to attest to your goodness but do so because they’ve seen you at your best. You can really get the sense of how someone truly is when you hear two, three, or four people come and tell you the same positive attributes.
Everyone is entitled to be judged on their whole life. Not just the sliver of their life in the prosecutor’s file.
The prosecutor is left with very little to argue when you show a powerful punishment case to a jury other than “look at what you did!” As bad as that can be in some cases – the punishment will be decided on all the facts which is as it should be.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article should be viewed as legal advice and you should contact an attorney directly for any legal issue.