Learning & Presenting the “Why”: Effective Mitigation in Criminal Cases

BY: Victoria Rusk, Mitigation Specialist  and graduate of TLC’s Death Penalty Seminar in 2011 and 2013

rusk.victoria@gmail.com   (Article was published in the Fort Bend County, Texas Criminal Defense Newsletter, Winter 2013-2014 edition.)  

Mitigation in the context of criminal proceeding is not touchy-feely, sentimental, whining, wailing, tugging on the heart strings boloney. Mitigation is a very real and practical presentation regarding all the facts and circumstance of the defendant’s background and history in relation to their current case. It is not an excuse. It is an explanation. From criminal to immigration law, mitigation is something only the defense can bring to the table. It is mandatory in capital cases because of the lethal punishment aspects. However, a majority of cases confront a punishment/ sentencing phase and attorneys are obligated to prepare for it. {Milburn v. State} {Shanklin v. State}   If knowledge is power, then this information is the light switch.

Multipurpose Tool

Mitigation can be utilized in every facet of court proceedings: bond hearing, grand jury packets, PSI, plea negotiations, trial and more. Mitigation is most beneficial to prevent trial (PSI, pleas negotiations). However, sometimes trial is inevitable, so it is best to retain a mitigation specialist from the start. Mitigation investigation provides the attorney with more information about the case and the client. This form of empathy can create a better attorney-client relationship, which can only benefit the outcome.  Mitigation specialists can provide immeasurable support in interviewing and obtaining support material from those who have known the client best and longer than the prosecutor, the judge or the probation department.  One of the main purposes of mitigation is to individualize each case and each defendant to determine punishment.  For every aggravating factor there is a mitigating factor to explain it or defend it.  Presenting mitigation can save years in the sentencing phase or in plea negotiation. It can also exclude lawyers from a potential IAC claim. {Moore v. State} 

Power of Why

Mitigation is the why.  Experience demonstrates to us that not only do the prosecutors and jurors, both grand and petit, want to know what happened, but they want to know why.  The why looks to the past as well as to the future, so that whatever the cause for this criminal conduct, it needs to be named and eliminated to avoid a recurrence.  After interviews with family, friends, neighbors, teachers, employers, doctors, counselors, etc. the pieces of the puzzle come together. Combine that with supporting records from various sources and you have a solid defense on how people become who they are. Information flows in from many directions and a mitigation specialist will organize it. Once you have this information, it is much easier to get an expert on board to testify on such mental disorders and/ or intellectual disabilities. Experts appreciate and utilize mitigation reports because they learn behaviors and characteristics of the client which very likely explains the circumstances of the crime. 

Client Relations

The specialist’s field work symbolizes a quality defense.  Surprisingly, many clients don’t know their own story or have never been asked to tell it. When a client realizes how their actions were influenced or supported by dependent conditions, it influences future decision making; including the decision on whether to plead or not. Mitigation builds a rapport with your client without extensive leg work. Since a mitigation specialist is an extension of the attorney, he/she is visiting the client, their family and potential witnesses, reviewing records and developing the story. Mitigation investigations not only unravel the client’s story but also the story of the parents giving a name to certain actions, behaviors, circumstance, etc. Those components assist an expert in drawing conclusions.  There are times when an expert is not hired because the mitigation report is enough to prevent trial.  Mitigation has the potential to build strong and positive client relations which results in more effective negotiations.

Mitigation is not miraculous. However, when used properly it is impressive to see how information shifts the mindset of another person.  It allows the attorney to concentrate on the case and to present the case in its best light.

Conclusion: 

  • Mitigation in non-capital cases is necessary and proper defense. Case law supports that. Where there is a will, there is a way. 
  • Mitigating factors are effective negotiating tools in all aspects of a court proceeding.  Depending on the case, the client and the circumstances, mitigating factors are strategically used for the best defense.
  • Mitigation Specialist versus Mitigation Expert. Experts testify and a mitigation specialist is a defense team member under attorney-client privilege. Mitigation specialists collect the information needed to hire an expert, assist the expert with records and reports and support attorney-client relations.
  • A mitigation specialist starts at $75.00 per hour. In a non-capital case, twenty hours is a good starting point. In mitigation, you don’t know what you will discover or when you will discover it.