To Mitigate or Litigate?

Everybody wants a lawyer in their corner who will fight for them. “Fight” doesn’t always mean what you might think it does. Sometimes fighting for your client means less beating up on witnesses on cross-examination and more presenting as much mitigation evidence to help soften or reduce the client’s exposure to criminal penalties.  It may not be as sexy but it can be every bit as effective.

Recently my good buddy Gabe Ermine was in a Capital Murder trial and it was what happened after his phase of the trial that inspired me to write this post.  The Sun-Sentinel indicated that Mr. Ermine’s client, who was found guilty of murder, fired his defense team and opted to represent himself in the sentencing phase of his death penalty case. Now, we don’t know why this defendant chose to represent himself and NOT present any mitigation evidence, but attorneys often will hear from potential clients “well, I’m guilty, so why do I need an attorney?” The irony is if you are guilty, you need an attorney more than ever. 

The case mentioned above was a homicide case where the State Attorney’s office was seeking the death penalty. It goes without saying that the death penalty is the most severe sentence that a court can impose. Even under Florida’s strict new death penalty law it was not surprising that the jury recommended that the death sentence be imposed because the defendant presented zero mitigation evidence!  This murder case is a classic example of why mitigation evidence is vitally important, but the reality is mitigation does not just apply to murder cases; it applies to any case no matter the size or severity.  Before you resolve your case, you need an attorney to evaluate and assess all the mitigating evidence that you may have.  Your attorney will (among other things):

  1. Evaluate your case to determine if the State can prove the offense.  You may be guilty of the offense, but the State always bears the burden of proof and it is very possible that your attorney could get some evidence excluded due to a violation of your Constitutional rights, substantially weakening the State's case against you.
  2. Work on negotiating the charges down. For example, a second degree felony charge carries a potential penalty of up to 15 years in prison.  A third degree felony carries a maximum of 5 years in prison. (For more information on criminal sentencing ranges see: Fl. Stat. 775.082).  By getting a charge or the level of a charge reduced an attorney can minimize your level of exposure. 
  3. Attempt to have the state attorney waive mandatory sentences.  Crimes involving firearms and large amounts of drugs have mandatory prison sentences, which can be waived by the State Attorney.  The State Attorney will not consider this unless your attorney makes a compelling presentation of why you are deserving of leniency. This is critical as minimum mandatory sentences imposed on violent offenses in Florida are served day-for-day. That means if you are sentenced to a 20 year "min/man" for discharging a firearm you will do a twenty years WITHOUT any time off your sentence for good behavior.  For more information on some Florida Minimum/Mandatory Laws see, for example, the 10-20-Life statute.
  4. Negotiate a final resolution. In most courtrooms, judges will accept whatever agreement is struck between the State and the Defense.  It is critical to have an attorney who will work to try and get you the sentence that you desire. And let’s face it: pleading OPEN in front of a Judge can be a scary proposition.

An attorney is equally important if you are found guilty after trial or if you enter an “open plea” to the judge (where the judge will sentence you to whatever sentence he/she feels is appropriate). The State Attorney will certainly present your criminal history and the testimony of victims.  Your attorney will gather as much mitigation evidence as possible to present to the trial judge to counter the damaging information that the State will present. Mitigation evidence comes in many forms:

  1. Educational Records – Client educational records will show the court the early seeds of what led that client to be involved in the criminal justice system.  They also may show developmental issues and how they were handled (or not) at an early age. 
  2. Medical Records – Many people have mental health and/or substance abuse issues that have been treated in the past. Providing this history allows the court to better understand the client’s state of mind at the time of the offense.
  3. Family & Work History –  A judge may feel more sympathetic to a client who has come from an unstable family situation, or where there was violence in the home.  Judges also like to see that an individual will have structure upon release from incarceration or during a period of probation.
  4. Disciplinary Reports – It is often overlooked, but judges do like to hear that a defendant who has been incarcerated pending trial/sentencing has behaved while in custody and has not been in fights or having other disciplinary issues.
  5. Case-Specific Issues – Sometimes the facts of the case itself are mitigation.  For example, if the crime was committed in the heat of passion or if the alleged victim and the client have a lengthy history of incidents.
  6. Many others – Each individual has a unique history.  A quality attorney will sit down with the client and have a lengthy biographical interview with the client to best understand the evidence to present. 

At the end of the day It doesn’t matter if you are charged with homicide, grand theft or driving without a valid license.  No matter the case, make sure you have a lawyer that is not only willing to litigate but also to mitigate. Contact me immediately by phone at 954-908-3399 or by email at matt@matthewglassmanlaw.com so that we can evaluate your case and begin charting the best path for you to move forward!

Matthew Glassman