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Mitigating Evidence: Is Your Client Really Good Or Really Bad?

 Which client do you want to present to the prosecutor or the judge?

Which client do you want to present to the prosecutor or the judge?

Donny and Marie were both arrested three months ago for their first DUI. Their attorneys had them undergo psychological evaluations as part of a mitigation packet they are developing for the prosecutor.

Donny has a severe drinking problem; it has been out of control for years, and it couples with his periodic depression to push him toward behavior over which he has little control. But, he has finally realized he can take charge, and he is working hard in therapy to make positive changes in his life. He is also planning on starting a 30-day residential treatment program, and he is now taking psychotropic medication to lessen his depression. He has had a terrible life, but he is finally understanding how to turn it around.”

Marie has had some difficulties in life, but she has never let them get in her way; she does not meet the criteria for a mental illness or a personality disorder. Based on her objective psychological testing, she does not have an ongoing alcohol use disorder. After her arrest, she quickly realized she had made a terrible mistake, felt instant remorse, and has worked to rectify the problem. She has already started Level 2 Treatment and has completed 20 hours; she is volunteering 4 hours per week at a homeless shelter for women with substance abuse issues; she is working in therapy to build on her strengths so that she never makes this mistake again. In short, she feels strong and is confident this was a one-time mistake.”

Each paragraph has a decidedly different flavor: Donny’s life is a mess. He is clearly an alcoholic who has had problems for years, and he is just now realizing he needs to make some changes. The rest of his psychological evaluation goes on to explain just how terrible his life has been.

But Marie is a different story: She is fine and has her life on track. She made a terrible mistake but is certain she will not repeat it, she doesn’t actually have an alcohol problem, and she is so mortified about being arrested that she has gone above and beyond what is expected to show her remorse. The rest of her evaluation report explains how stable she is.

These two examples highlight the two different approaches you can take as an attorney when it comes to gathering mitigating evidence to aid in plea bargaining and sentencing:

  1. You can highlight just how messed up your client is in the hope of eliciting some sympathy, or

  2. You can point out how amazingly good your client is in order to spotlight the lack of recidivism risk, the lack of danger to the public, and the lack of need for punishment.

First and foremost, any mitigating evidence attorneys collect from psychologists must be accurate and true and should include both objective psychological testing and unbiased opinions. That goes without saying, but it must be said anyway--attorneys should not hire hacks; it does no one any good, least of all the client.

Now, assuming the psychologist has a reputation for accurate and unbiased work, you need to ask yourself the question, “Ideally, what type of information do I want about my client? The good stuff or the bad stuff?”

To answer this question, you will need to have an intuitive read on whether the good outweighs the bad, or vice versa. If it seems like your client is a trainwreck, an unbiased psychologist is probably going to give you a detailed explanation as to why and how that trainwreck occurred. If your client seems to have it all together, the psychologist can probably help you explain how and why that is.

For serious felonies, it may be obvious that you only have one way to go: It will be a hard sell to a prosecutor that your client, charged with first-degree murder, is a really good person who promises never to do it again. In these cases, your best bet is to gather mitigating evidence, including detailed psychological information, attempting to explain why your client did what he did, but maybe more importantly, to elicit some level of sympathy from the District Attorney (“You don’t want to execute a mentally ill man, do you?”).

For some drug-related crimes, you might want to go the sympathy route as well, helping a prosecutor understand, for example, that your client has a drug problem, not a bank robbing problem.

For DUIs and other substance use problems, you may not be best served by highlighting the horrible and permanent flaws in your client’s character. Rather, it may be much more helpful, again only if it is true, to point out what a stable and good person your client is and that he does not pose a risk to the public in the future. Forensic psychologists, at least this one, can administer psychological tests and run your client’s data through a number of actuarial risk assessment calculators to estimate how low or high of a risk to the public that person is.

Think about this good/bad dichotomy prior to building a mitigation packet for your client. What are the pros and cons of pointing out all of your client’s flaws? What would happen if you instead focused on building up your client and making him look good? How will the prosecutor or judge on the case react to either type of information?

Even if you instinctively think one approach is better than the other in any given case, force yourself to jot down a few notes on the other option. You might not change your mind, but it is good food for thought, and it can ultimately help you hone your mitigation argument. You can also get help from the psychologist who you’ve retained, who can give you some sense of what the objective data is saying about your client. Is the evidence leaning one way or another?

In the example of Donny and Marie, your choices would be fairly clear. Donny’s life is a mess. Marie’s is not. Other clients are not always so clear cut, though, and a good, honest forensic psychologist can help you determine the best approach to mitigation.