By Criminal Defense Lawyer Jeremy Rosenthal
We attempt to fight all cases on two fronts. We are prepared to fight about guilt/ innocence and we always have to prepare to handle things should we lose.
Preparing for punishment in a trial is like buying car insurance. No one buys it because they’re planning to crash, rather, you buy it because it’s the prudent thing to do and the law requires it. The law requires defense counsel to prepare for a punishment phase of a trial too though we do our best to avoid being in one.
For all the tough talk about taking cases to trial and winning not guilty verdicts – punishment and mitigation cannot be ignored.
Mitigation is evidence which tends to explain or lessen the culpability.
I explain to clients people commit acts of domestic violence for one of two reasons. Either they are rotten and no good SOBs who enjoy inflicting pain on people they love — or there are deeper causes, factors, and issues which need to be untangled. In all my years of practice, I don’t know if I’ve met anyone in the first category. The former is a caricature or cartoon figure which prosecutors make my clients out to be — the latter is reality.
As for the deeper causes or roots to these situations — we can and do find them everywhere. They can be anger issues, substance issues, or mental health issues. Perhaps parents or previous partners unintentionally trained them to solve family problems with physical abuse. Maybe their relationship has the dysfunction of reciprocal domestic violence which needs addressing.
To avoid harsh sentencing we must also present a compelling mitigation case to a judge or a jury.
This Can’t Happen Again
If we are pleading guilty or the jury finds defendant guilty – this is question about which we must be able to assure the jury. Beyond assuring it doesn’t happen again there are very real victims in domestic violence who need to be allowed to heal in their own way too.
A good mitigation strategy is good for the society, good for the victim and is fair to the defendant in light of all the circumstances.
“Never Lose Punishment”
I have a saying at our office – “never lose punishment.”
Trials are broken into two phases. The guilt/ innocence phase and if the judge or jury finds defendant guilty then a punishment phase.
We don’t make the facts and each case which walks in the door walks in with different degrees of difficulty. I’d love to say we can secure acquittals in the guilt/ innocence phase for all – but that’s a tall order. But we should be able to tell our client’s story in a compelling fashion for the purposes of mitigation if nothing else.
For punishment – the prosecution often has theories and tag lines. They try to sell the jury on the caricature or cartoon wicked-guy. We have a human being with a story. I don’t think we should ever lose punishment.
*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization. He is recognized as a super lawyer by Thomson Reuters.