Mitigation—evidence presented by the defense in the sentencing phase of a trial—is universally used for capital cases.
It should be an integral piece to most, if not every criminal case.
Though it has been less than a year since I began my practice as a mitigation specialist, I have already seen the beneficial effects of mitigation evidence at every level of litigation. The following case studies are examples of the value of mitigation. The names and places have been changed for confidentiality purposes.
Case of Paul: Paul was under investigation by CPS and the police department. He hired an attorney before his case was indicted. Paul is alleged to have assaulted his brother-in-law and step-daughter when he went into his own home to take custody of his own children.
Paul’s wife of four years had been married twice before and had a child with each man. Paul later adopted the youngest of her kids. Then, Paul and his wife had a child together. Later, Paul learned that his wife had been cheating on him, and he filed for divorce. Shortly thereafter, the man his wife was seeing overdosed on methamphetamines and died in Paul and his ex-wife’s bed while their children were at home.
After learning the circumstances of the boyfriend’s death, Paul arrived at their home to pick up his kids, which is when the investigated assault allegedly took place. The background information is crucial. Were Paul’s actions justified? What would you have done if you were in his situation?
It remains unclear whether Paul’s case will be indicted. Mitigation and investigation efforts are still underway.
Case of Alfred: Alfred was charged with aggravated sexual assault of a child and sexual assault of a child. Two teenage boys, after coming back from a school trip, told their parents that Alfred had made sexual advances towards them on multiple occasions. However, Alfred was only charged with the assault on one of the boys, because the other boy’s parents did not believe him and did not want to press charges.
Alfred was a very popular man. He was the neighborhood hairdresser as well as a surrogate father figure to several kids who were being raised in single-parent homes. Many moms gave Alfred permission to discipline their kids, and their kids were frequently at his house for a haircut.
Alfred met Sally. Sally had been looking for someone to cut her son’s hair. After a while, the two began a romantic relationship, and Alfred became like a stepfather to Sally’s kids. Sally also gave Alfred permission to discipline her kids as if he were their father. Sally’s son had a friend, and neither of the boys liked being disciplined by Alfred.
After they returned home, both boys reported to their parents that Alfred had forced sexual activity upon them.
At a big meeting among both families, Alfred denied all accusations. After the meeting, life pretty much went on as normal. There was no call to the police, and both of the boys’ moms continued to associate with Alfred. In fact, the police were not notified until later when one of the boys got in trouble at school again.
Alfred had about ten character witnesses willing to testify about how Alfred bettered their lives. He mentored them and helped raise them because their dads were not there for them, or were in prison. None of the witnesses thought that Alfred was capable of committing such a crime. However, the most influential mitigating witness was the mother who did not want to press charges against Alfred. For several reasons, she did not believe her own son’s story.
Alfred sat in jail for over a year before the State finally dismissed his case.
Post-Conviction/Ineffective Assistance of Counsel
Case of Bobby: Bobby was sentenced to 15 years in prison on an aggravated assault with serious bodily injury conviction as well as an application to revoke probation on a burglary of a habitation charge. Bobby pled guilty to the court and elected to go to the judge for punishment, yet Bobby did not feel his court-appointed attorney provided much of an effort on his case. After Bobby was sentenced and waiting in the county jail to begin his prison stay, he decided to appeal the decision of the court on a claim of ineffective assistance of counsel.
A new team was appointed to his case and put together a significant amount of evidence to show that Bobby should receive a new trial. Bobby had at least ten character witnesses prepared to testify on his behalf at his punishment hearing, had they been asked. However, none of the witnesses were contacted by his previous attorney. After Bobby’s new defense team spent several weeks speaking with witnesses and putting together evidence for a motion for new trial, the mitigation evidence was presented to the District Attorney’s office, which soon decided to agree to a new trial without even a hearing.
Bobby’s team then moved on to preparing for his new sentencing hearing. After several negotiations with the assistant district attorney, they finally agreed to a plea deal for eight years in prison on the burglary of a habitation probation violation and five years on a failure to stop and render aid, to run concurrently.
Therefore, without the aggravating factor, Bobby would be eligible for parole in half of the time and had already done enough jail time to make him parole eligible at the time of his current conviction. Needless to say, Bobby was very happy with the results.
Case of Tom: Tom was a decorated war veteran. He received the Purple Heart award for his bravery and honor fighting for our country in Vietnam. Tom was a leader in the veteran community and received several awards during his time as commander of his Purple Heart chapter. He also bestowed awards to veterans. Unfortunately, Tom was indicted by the federal government on one count of access with intent to view child pornography and aiding and abetting. He faced a maximum ten-year prison sentence and a $250,000 fine.
Tom elected to plead guilty to his crime and have the court assess his punishment. His team was able to put together a sentencing memorandum to show Tom’s decorated military career, his age, and his failing physical health. Due to these factors, the court gave an unprecedented downward departure from the sentencing guidelines, and Tom received only two years in the federal penitentiary.
Regrettably, people being investigated for crimes, charged with crimes, or convicted of crimes all have one thing in common: In the eyes of the law, they are considered “criminals,” no matter the differences in their crimes and personal histories.
Yet each person is different, and each story needs to be told. It is important to show the client as a whole person and not just a criminal. Whether clients have positive mitigation evidence or negative, that information should be looked into from the very beginning. If you do not delve into who your client is as a person, you are not defending your client to the fullest.
About the author:
Lindsey Lanehart Craig hails from Lubbock, Texas. Her father is a prominent criminal defense attorney and her mother is a retired County Court at Law judge. Lindsey obtained a Bachelor of Science in radio, television and film from Texas Christian University in 2003. She has worked for several attorneys and most recently was a paralegal in her dad’s firm, where she learned the basics of mitigation and investigation procedures. She has helped prepare several criminal cases for trial and has assisted with jury selection as well as audio/visual presentations during trial. Lindsey also executed a mock trial in a high profile capital murder case and became interested in trial consultation.
In May of 2015, Lindsey received her Master’s Degree in counseling from Texas Tech University and completed an internship working with criminal offenders with co-occurring substance abuse issues. With her knowledge of criminal law proceedings and interest in helping people, Lindsey began her own practice as a trial consultant and mitigation specialist on September 1, 2015, Craig Trial Consultants. Since then, she has primarily worked with criminal defense attorneys on mitigation efforts for their clients.