By Criminal Defense Lawyer Jeremy Rosenthal
Criminal trials are bifurcated. This means there are two phases. The first phase is guilt/ innocence and in the event of a guilty verdict then the second phase is a punishment phase. The punishment phase can be either before a judge or a jury. The defense is legally and ethically required to prepare for both. Preparing for punishment is today’s topic on my continuing series of blogs about sexual abuse charges.
Losing or Pleading Guilty on a Sexual Abuse Charge
Many defense lawyers talk like pro wrestlers. We talk about how tough we are and how we rip the opponent from limb to limb. But the fact is we come in second place in our profession more than we’d like and plea bargaining is a critical aspect of defense work.
With the punishments for sexual abuse being as stiff as they are – we always have to keep in mind the possible second phase of the trial. We have to work just as hard preparing for the possible punishment phase as we do the guilt/innocence phase.
In sexual abuse cases – particularly with child victims – plea bargaining is often not a major component. This is because the plea offers can be so high that there is either no reason to seriously consider them or if the prosecution wants such a high prison sentence then on our side we may as well go down fighting. But it never hurts to research, learn and develop mitigating facts either for punishment or on the off-chance we can plea bargain to lower charges.
What is Mitigation?
Mitigation means learning and proving facts which lessen punishment.
Mitigation is a difficult task in a sexual abuse case for a number of reasons. There is a victim who has suffered horrific abuse which has the potential to emotionally and psychologically scar them for life. Sex is still — and will always be — a taboo subject for many folks too. Thus, many folks don’t understand criminal sexual dysfunction and aren’t interested in understanding it. Another hidden factor is many jurors want to prove to other jurors how tough and intolerant they are of sexual abuse too.
The best mitigating evidence is what I call “three pronged.” That is it accomplishes the following:
- It acknowledges the abuse and thus helps the victim heal;
- It explains underlying causes of the abuse;
- It provides reason and hope the defendant can conform their behavior in the future.
Examples of Mitigating Facts in a Sexual Abuse Case
A saying I like is “hurt people hurt people.” Many of the mitigating factors we look for are along those lines. Examples could include:
- The defendant was sexually abused themselves;
- the defendant suffers from some mental deficiency;
- the defendant suffers from some type of developmental deficiency;
- the defendant suffers from some type of psychological deficiency;
Another key component of mitigation in sexual abuse cases are evaluations from licensed sex offender professionals which use empirical data to assess the degree of risk and the underlying causes of the dysfunction. The evaluation can include a prognosis and discuss if any type of treatment will help the accused.
Examples of Mitigation the Prosecution Tears Through
Mitigation and preparation for punishment has to run deep. There are some cases where the defense parades all of their friends and family to testify what a great person they are and hope it helps to lessen punishment. I’m not against giving the jury a full picture of the accused’s life but doing a witness parade without something deeper allows the prosecutor to prove-up their narrative the defendant simply has everyone fooled.
Another poorly conceived punishment strategy is to tell the jury they got it wrong in the guilt/ innocence phase. Don’t get me wrong… there is nothing worse to me than fighting like hell on a case I strongly believe in only to have a jury reject us. But we only make matters worse by blaming them in a punishment phase.
*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization. He is designated as a Texas Super Lawyer by Thomson Reuters.