Vindication or Mitigation (or Both)

By Clayton T. Robertson (Criminal Defense / Civil Rights Attorney)

I have clients who ask me, particularly potential clients before my retention, about how cases proceed. Of course, whether it's a criminal or civil case, you take them through the possible stages of the case, the scope of anticipated representation, and other logistical issues.

In criminal cases, I've realized that it's also beneficial to look at a case through the prism of "vindication" versus "mitigation." That is, how can we best attack a prosecutor's case (or potential case, if it hasn't been filed yet)?

Vindication

Do we attack it from a "vindication" perspective -- that is, will the prosecutor fail to prove the elements of the charges (or anticipated charges) because of problems of proof with the elements of the alleged crime(s)? This is what I call a substance-based or merits-based approach. Will the DA's case fail for substantive reasons? Are we simply able to show that you aren't criminally culpable as alleged, or as anticipated?

Mitigation

Or do we attack a case from a "mitigation" perspective -- that is, even if there is a technical violation of the law, or a de minimus violation of the law, is it in the "interests of justice" for a prosecutor not to proceed with a case (or not to file a case)? This would be due to, among other reasons, my client's otherwise good moral character, lack of criminal history, service to the community, educational or professional background, prior good deeds or acts, and other notable items or accomplishments that show that any given incident is not likely to reoccur in the future, or the harms from a criminal prosecution outweigh the benefits.

Combination of Both

These are not mutually-exclusive approaches. In fact, they often run as parallel, interdependent tracks. If as case discovery and investigation proceed, we can poke holes in the prosecutor's case from a substantive perspective while also showing that my client is a good person, then I can often negotiate a substantially better case resolution. And even if there is a provable crime, so to speak, we may demonstrate that the prejudice of a criminal prosecution far outweighs its value to society (as a form of punishment or otherwise).

In this way, we may be able to negotiate a resolution that involves some type of deferred sentencing or diversion, leading ultimately to a dismissal, or we can obtain a charge reduction (e.g., from a felony to a misdemeanor), or we can get community service or electronic monitoring instead of jail time. The possibilities are seemingly limitless, but we need to work the case up to be convincing to a prosecutor.

Conclusion

These are only a few of the possible scenarios, and of course every case is different and no attorney can ever promise you in advance an outcome in your matter. But make sure your attorney considers all the possible doors (or tracks) by or through which your case may proceed before focusing on just one. Even when they run parallel, they often can be combined for a better case outcome.