Mitigation is sometimes the best defense

You can only play the cards you are dealt and as a criminal defense attorney, some of your clients will in fact be guilty. Of course, the State has to have the evidence to prove that. It is only when your client is in fact guilty and the State has overwhelming evidence that makes a trial impossible does the primary defense shift to 100% mitigation. While top notch defense attorneys want to win every case, sometimes scoring an amazing plea bargain is the next best thing given the circumstances. What separates the great defense attorneys from the good ones is how they handle the mitigation.


There is no one way to work on mitigation evidence; like anything else, it starts with the facts of the case. However, mitigation evidence has to be developed. You cannot just ask nicely for a good plea. You have to explain why you should get it. The mitigation evidence should focus on why the crime happened and why it won’t happen again. When it comes to sex crimes cases, a psychological evaluation with a risk assessment aspect is very important. However, this should be followed up with treatment. Contrary to popular opinion, not all sex offenders are monsters in the sense that they are actively plotting to harm children. Instead, they often have some serious mental health issues and may have been abused themselves.


One example is the defendants charged with Internet child luring. Most of my clients reported severe depression and other mental health issues. Most also had no prior record or accusations. Clearly, something caused them to engage in this offense. With these cases, thought should be given to distinguishing between using a computer to engage with a purported child versus doing it in real life and how the client’s mental health might have blurred their judgment. If the client has a prior history of mental health issues, this could certainly help. However, just because the client does not have a history, does not mean that they do not suffer from any problems. Either way, an updated evaluation needs to be performed to see how the mental health issues helped lead to this conduct.


The age of the victim or purported victim is also important as is the age of the defendant. A 22 year old looking to have sex with a 14 year old may be looked at more favorably than a 44 year old. This fact needs to be emphasized. Again, an evaluation will help determine if the client is a pedophile, hebephile (someone into older children) or if the person is merely an opportunist who is not necessarily obsessed with children but will have sex with them if given the chance.


Regardless of the client’s personal situation, the prosecutor needs to feel comfortable that the client has identified their problem and is seeking treatment. This will seriously help recidivism which is one of the most important issues for the State.

Posted on February 24, 2013, in Defenses to Sex Crimes and tagged , . Bookmark the permalink. Leave a comment.

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