By Clayton T. Robertson, Attorney-at-Law (Criminal Defense Attorney)
Negotiation Approaches
When a criminal defense attorney negotiates with a prosecutor, several approaches may be available. Not all work with equal effectiveness in any given case, and often many can be used in conjunction with one another. After interviewing their client, an attorney is better able to point out errors or contradictions in the police report (and related discovery) to the prosecutor to attack the case on its merits. The attorney may also file certain motions to attack the validity of the complaint, detention, seizure, or arrest. On other occasions, the attorney may "humanize" their client by preparing what is called a "mitigation packet" to submit to the prosecutor. These approaches (and others) rely upon open and effective communications between attorney and client from the outset of the client's case.
Mitigation Strategy
A mitigation strategy may be used in conjunction with other negotiation approaches. It is part of what is called a "client-centered" defense strategy. The key is to humanize your client. The purpose is to show that your client is a good person and a productive member of society and that this particular offense is not representative of them as a person (whether it is charged as a felony or misdemeanor), or that the client is taking responsibility and attempting to move on productively with their lives (through treatment, restitution, or otherwise). Underlying themes might include that this offense was an aberrant decision, error in judgment, due to life stressors, etc., and it does not reflect upon them as a person as a whole.
In cases in which a mitigation strategy is used in conjunction with other approaches, it might also be used to show that the defendant is not a person capable of committing the offense (or committing it in the manner charged in order to obtain a charge reduction from the prosecutor) or, critically, that the prosecutor's offer or recommended sentence is not appropriate. In conjunction with a client-centered mitigation strategy, an attorney might also show how the circumstances of the offense are not as bad as portrayed in the police report.
Mitigation Packet
A "mitigation packet" contains numerous exhibits attached to a cover letter that explains the "story" behind the client (using the exhibits as support). Don't let your attorney simply prepare a cover letter that essentially says "see attached" without spending the time necessary to write an effective letter. (A "see attached" letter happens more than you would expect, especially if there are already "red flags" in the attorney-client relationship. For starters, depending on the retainer amount, the attorney might not want to spend the time on this type of letter or invest the time necessary to prepare the best packet.)
Your criminal defense attorney also needs to interview you extensively from the outset of your case to understand your personal situation to create the most effective mitigation strategy and "story." Because prosecutors are cynical, if your attorney does not spend the time to individualize you as a person, this strategy will not work. It will look like yet another "see attached" type packet with the typical pro-forma attachments. It's going to be a waste of your time. Your attorney should also advise you at the outset of your case on what strategies and programs to pursue, which should also help other aspects of your case (including with bail, sentencing, etc.).
Mitigation Sources
Your attorney should know the "mitigation sources" that will assist the preparation of the packet. Some attorneys (such as myself) use "mitigation checklists" with clients to make sure they cover everything as part of a thorough and comprehensive strategy. (This blog is only just a start.) The attorney should also be able to educate you about the most effective "letters of support," including who should write the letters and the recommended format/content to maximize their effectiveness. The ideal content depends on the person writing it. It is unconscionable when an attorney asks a client to get a letter of support without taking the time to discuss with the client how the letter fits into the overall mitigation strategy or what it ideally should say. Your attorney should also review the letters of support to make sure they are as effective as possible.
Some of these many mitigation sources/categories are listed below. It is vital that your attorney take the time to speak with you before you start the mitigation process to understand your particular situation and what will work best for you. Your attorney may also get involved on your behalf to speak with potential supporters if they need additional information or encouragement. Also, after the mitigation packet is submitted, your attorney should schedule a meeting with the prosecutor to "lobby them" and show the prosecutor why all of this matters. If your attorney is too busy to do all of this, you'll have problems.
Letters of Support and Documents
A mitigation packet includes "letters of support" from current or former employers, colleagues, teachers/professors, pastors/priests/clergy, mentors, coaches, sponsors, physicians, therapists, life-long friends, family members, current or former spouses, children, neighbors, community leaders, commanding officers (if there is a military background), and others. The packet also includes CVs/resumes, professional certificates, academic transcripts (including GEDs), medical documents, legal documents, proof-of-completion certificates or logs (AA, drug treatment program, online courses, etc.), awards/achievements, performance reviews, family/personal pictures, restitution receipts, publications, and other supporting documents. (Again, these lists are not exhaustive by any means.)
Mitigation Categories
"Mitigation" categories include the following: (1) professional/vocational background, credentials, and affiliations, (2) educational background, (3) family background (including any special circumstances, such as taking care of a parent, etc.), (4) medical background (if appropriate), (5) community-service background, (6) legal/criminal background, (7) immigration background (if appropriate), (8) charitable background, (9) history of overcoming obstacles, (10) social history background, (11) childhood background (including any trauma, abuse, or hardships), (12) military background, (13) financial background (including overcoming poverty or other hardships), (14) residential history, and other categories.
Conclusion
In the appropriate circumstance, mitigation packets are one part of a successful negotiation strategy. You need to make sure your attorney is willing to spend the time and effort to do it right. Your case might depend on it.
