Mitigation Strategies

Generally speaking, mitigation strategies come in two variations. The first is familiar to everyone. This is where a defendant, having been found guilty, asks the judge or jury for probation or for a shorter prison term than seems warranted under the facts of the case. The lawyer might bring his client's wife to testify what a wonderful husband and father the defendant has been. Or his pastor may tell of his life filled with good works. These types of testimony don't work very well, but some lawyers, usually at their clients' instructions, still use them. 

In the second type of mitigation strategy, the lawyer can attempt to portray the offense as less serious than it appears because of the circumstances under which it was committed. In an intoxication manslaughter case, if the defendant is proved to have been intoxicated, his attorney might try to show that it was the deceased who caused the accident by running a red light, and that his client's intoxication was coincidental and causally unrelated  to the death. While this strategy can be very effective, it is limited to cases where the mitigating evidence fits well with other established facts. 

While the first strategy works poorly and can even backfire, and the second strategy has limited availability, there is a third path to mitigation of punishment which exists in virtually every criminal case. Good, effective evidence can be created after the fact (after the offense date.) I vigorously pursue these evidence-creation strategies with clients. And for the cynics reading this, no, I am not talking about the manufacturing of false or misleading evidence.