What is Mitigation?

November 8, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

“Mitigation” means making something less severe, serious, or painful.  In criminal law it refers to learning, seeking and providing facts which reduce someone’s potential punishment.

Mitigation is Important in Every Single Case

A big misunderstanding is mitigation and trying to get an acquittal are mutually exclusive – they are not.  People think you somehow admit guilt if you try to take mitigation steps after an arrest such as seeing a mental health professional or entering drug and alcohol treatment.

You can still fight for innocence at the same time you try to explain or lessen the harshness of the possible punishment coming towards defendant.  In fact, we are legally bound to do so and it can constitute ineffective assistance of counsel to ignore mitigation.

A solid mitigation case actually strengthens our ability to fight for an acquittal.  This is because we are less concerned about severe punishment in the event a jury disagrees with us and finds the defendant guilty despite our best efforts.

Mitigation Which Looks Backwards

Mitigation can help explain why the Defendant is in the predicament they are in.  Examples of backward looking mitigation to explain or give context to someone’s actions often include:

  • Mental health or psychological disorders
    • anxiety
    • ADHD
    • Depression
    • Bi-Polar Disorder
    • Psychosis
    • Manic episodes
  • Past sexual abuse of the accused;
  • Past physical abuse of the accused;
  • Past or childhood emotional abuse of the accused;
  • Addiction and history of addiction of the accused.

When Someone Has a Great History

Another form of backwards mitigation is potentially where an accused has never been in trouble at all.  Certainly someone who has been straight as an arrow their entire lives do deserve some credit and lenience in many cases.  The same goes for people who really have their act together and are – for example – in school making straight A’s and helping build houses for homeless people on the weekends.

Mitigation which Looks Forward

Any mitigation must have a forward path to be effective.  Explaining to the judge or jury an accused has been able to explain or identify why they have a particular problem is great.  It lets the jury know the accused isn’t an evil person.  But without a path forward to correct things – a judge or jury might feel they need to incarcerate the person to protect society in the future.

Forward mitigation could include steps taken by the accused after the arrest.  Examples are endless of the types of steps which can be taken to hopefully re-assure folks criminal behavior won’t repeat itself with the accused.  Examples might be;

  • Drug and alcohol treatment
  • psychological treatment
  • Sex offender therapy or treatment
  • Rage or anger management treatment.

Examples of Mitigation in Criminal Cases

  • A classic and easy to understand example are Driving While Intoxicated cases.  I explain to clients everyone at the courthouse including prosecutors, judges and probation officers think (1) someone arrested for DWI is not only guilty – but they’ve probably gotten away with it 100 times we don’t know about; and (2) all people arrested for drunk driving are alcoholics.  Those assumptions may be completely fair or unfair – but those are the attitudes we will have to over-come in a case whether we like it or not.

If we can convince the courthouse types not only did the defendant get screwed by being arrested in the first place – but also he’s perfectly fine to drive – it only strengthen’s our overall hand.

Bottom Line on Both Forward and Backward Mitigation

A criminal defense lawyer cannot assume they are just going to win every case no matter how confident we are we will ultimately win.  The Courts have held repeatedly to ignore mitigation is ineffective assistance of counsel.  Mitigation also helps us strengthen our hand and ability to fight the case on multiple fronts – not just sympathy or correcting certain behavior.

*Jeremy Rosenthal is board certified in criminal law by the Texas Board of Legal Specialization.  He is recognized as a Texas Super Lawyer by Thomson Reuters.

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Mental Illness & Criminal Law: Understanding the Problem

October 15, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

It’s hard to over-state the importance the role mental illness plays in criminal law.  There’s little question in my mind it’s far more prevalent people give it credit for.

A recent survey to Texas criminal defense lawyers asked, “What percentage of your clients suffer from some degree of mental illness in your view?” — and the most common answer was between 50% and 75%.

 

What is Mental Illness?

I find many folks – including my clients and their families – struggle with understanding the very concept of having emotional or behavioral problems.

My view is just about everyone wakes up in the morning wanting to be a law abiding citizen.  But many people are driven so far out of their normal range they get in trouble because of things like anxiety, depression, manic states, and on and on.  This is how I define mental illness.

The term “mentally ill” has a much harsher and deeper connotation than what it really means to me.  Many think it only applies to people who hear voices in their heads, talk to themselves, or who must be confined to a straight jacket in a padded room.  In reality, someone going through a really rough patch in their lives can be driven so far by everything going on in their mind – they can often do or say something which hurts another person or gets themselves in a situation they otherwise know is wrong.

Jail

I ask juries what they think of our national mental health system.  They get puzzled – because they can’t really think of what that is.  Then I point out to them the tragic truth — our mental health system is called “jail.”

Jail and mental illness are frequently on a collision course.  We often don’t know someone has cancer until they exhibit physical symptoms.  We often don’t know someone has the flu until they have a fever.  And we often don’t know how much someone is struggling inside until they get into trouble.  It could be assault, theft, drugs, trespassing — the scenarios are endless — but there are very few criminal cases where mental illness doesn’t play a role.

The Enemy of Treatment – the “Tough on Crime” Mindset

Texas is tough on crime.  Many here unfortunately feed into the cops vs. robbers, good guys vs. bad guys dialogue.  Many believe if crime rates are high – we just need to be meaner to people and things will be fine.  Fortunately these voices are fewer and fewer.

Police deal with tons of mental illness on the streets.  Their aim is generally short-term safety for everyone and not necessarily long term treatment.  They also often don’t have the choice but to take someone to jail who has either committed a crime or who poses a danger to others.

I find prosecutors have a tougher time understanding mental illness because they’re somewhat insulated from it.  They talk with the shop-owner who is having a hard time making ends meet but it’s the defense lawyer who deals to the shoplifter describe the sheer degree of anxiety which drove them to do something they knew was wrong as a simple example.

Getting People Help

The million-dollar question is how do we get help to those who need it. That’s an equally difficult problem.  Understanding the problem is the start.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is a Texas Super Lawyer as designated by Thomson Reuters.

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Posted by niftybrady