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Humanizing the Defendant Through Criminal Mitigation Evaluations: Rethinking Presentence Strategies as a Strategic Tool for Criminal Defense Lawyers

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Humanizing the Defendant Through Criminal Mitigation Evaluations: Rethinking Presentence Strategies as a Strategic Tool for Criminal Defense Lawyers

This course provides an advanced overview of criminal mitigation as a key strategic tool for criminal defense lawyers, and reviews various humanizing processes that a criminal law attorney can utilize to better advocate for his or her client. Mr. Silver discusses how the use of psycho-social analysis, which can also impact the factual analysis of the case, can provide a more positive and informed narrative of a client and increase their chances of success in the courtroom. Both experienced and novice lawyers will gain important insight into various criteria to consider and deploy at the pre-sentence or pre-plea stage of representation.


Mark Silver
Attorney & Clinical Social Worker
Criminal & Immigration Mitigation Expert


Mark Silver: Good morning. I'm going to be speaking today on a crucial CLE topic for criminal defense lawyers in the United States. And that is criminal mitigation. I am both a lawyer and a psychiatric social worker. I have done perhaps 2000 evaluations at this point for immigration, personal injury, and criminal lawyers in the United States. And my focus today is to help explain how we could better humanize the client, humanize the criminal defendant for both pre plea and pre-sentence purposes as a means to achieve a better outcome for that at individual.

   The subtitle of the lecture today is Humanizing the Client Towards a Better Legal Outcome, and that's exactly what I want to focus on today, how criminal mitigation, as a crucial tool for criminal defense lawyers today, helps to recapture our clients, their issues, and challenges, traumas, the kinds of obstacles that they faced perhaps earlier in their lives to better understand how in the world they got into so much trouble.

   I have a book. It's called Handbook of Mitigation and Criminal and Immigration Forensic: Humanizing the clients towards a better legal outcome. It's now in the seventh edition. The new edition came out just last month. And the first half of the book is completely dedicated to criminal mitigation issues. I also really try to integrate theory with practice, and as such, I have a redacted sample criminal mitigation report that I'd be more than happy to share. Please send your email with your name and address, all your personal information. I get a lot of spam, so I just want to know it's a real lawyer, and I will send you back in a word format, a redacted copy. Obviously, real issues regarding names and birth dates and so on will be changed. But I really try in all my lectures to try to integrate theory and practice, and this is the best way to do so. The sample I'd be sending is one specifically related to a client who has suffered a complex trauma in earlier developmental stages. And it was done for a pre-sentence criminal mitigation case.

   I have another book with many criminal mitigation samples. I put it on the slides today, but honestly, if you send me your email and put in the subject line complex trauma, I will be more than happy to send it back to you. Don't need to get this other book. The first book that I recommended is a book that outlines major clinical concerns for the mitigation expert and major areas of evaluation focus throughout the criminal mitigation process.

   So we have a lot to cover today. I just want to quickly review what we're going to be looking at. First, specialty issues within criminal mitigation, which is very crucial. Next, the strategic shift that has occurred for criminal defense lawyers. Third, the legal basis for criminal mitigation in the United States. Then, we're going to look at the actual purpose of criminal mitigation. Next, the key ideas to consider in mitigation, generally for any kind of client regardless of the kind of case. And lastly, psychosocial evaluations, which is the central tool that mental health experts use to evaluate individuals, families, and so on, as a means to understand who they are, their background issues, and of course, the context of their behavior for the criminal mitigation matter. So let's jump right into it.

   So, specialty mitigation issues. There's a whole bunch of them, and I don't want to spend too much time because each one of these is really a separate CLE that I present for criminal mitigation lawyers in the United States. But the first is inadequate PSR by probation officer. This is a crucial area of mitigation, and it means that in every pre-sentence report that I've read, there have been inadequacies and major omissions in the areas of family, mental health, background, community, and so on. And that's an extremely serious problem because the PSR, of course, is very influential for the prosecutor judge, and therefore, it needs to be corrected through a mitigation evaluation.

   The next area of mitigation, which is really specialized is white-collar crime. Again, I have a separate CLE on this, but the major problem with white-collar criminals is the demonization. So many of these clients, in fact, have had traumatic backgrounds and have really clear explanations for their behavior, but because they have come from what is considered a privileged upbringing, and they have had a good education and so on and so forth, they're really demonized because the thought is, "Well, these are people who have had every opportunity. Why should we give them a break?" And they need humanization through criminal mitigation all the more.

   The next area are sex crimes and porn. I've done quite a few of these cases for both immigration and also criminal lawyers through the Adam Walsh Act. These are extremely, extremely, serious cases. There's, of course, a zero tolerance and a horrible sense of demonization for these individuals, as well, regardless of the level of complexity or seriousness of the crime involved.

   The next area that requires criminal mitigation is complex trauma. These are individuals that have grown up suffering, systemic, physical, emotional, psychological, verbal, even sexual abuse, as children or teenagers and how the abuse has fundamentally affected them neurologically, psychologically, and emotionally causing them to really have impaired judgment. Their decision making is very poor, and they suffer all sorts of deficits in areas of their lives that really need to considered through criminal mitigation.

   The next discreet area of mitigation is borderline personality disorder. Again, we have a separate CLE on this, but so many of our clients are seen as psychopathic or antisocial when, in fact, they have borderline personality disorder, which really reflects their low self-esteem, difficulties with interpersonal and community interaction, their poor decision making, impulsivity. And many of these clients suffer from secondary problems including severe depression, anxiety, and even suicidality.

   Next is the Adam Walsh Act, which I mentioned, which is primarily in the realm of criminal immigration for immigration defense lawyers.

   Next is criminal mitigation. These, again, for primarily immigration lawyers, these are individuals who want to stay in the United States because they have qualified family members here. But these individuals also have perhaps a felony, a CIMT, which is a crime involving moral turpitude, or perhaps they've entered the United States illegally through fraud or misrepresentation. Another major area of mitigation is clients who somehow try to undermine their own case and they're jeopardizing their lawyer's best advice. These are clients often with personality disorders, sometimes borderline personality disorder, and that requires a consultation with a mental health or mitigation expert, as well.

   And finally domestic violence. I've done hundreds of domestic violence evaluations in the realm of immigration, but I've also done quite a few for criminal defense lawyers to help better explain the issues regarding the defendant and the social and sexual, psychological, and personal interaction with the supposed or alleged victim.

   So, there are many areas of criminal mitigation today that really help criminal defense lawyers more fully understand their clients and help to better and more holistically consider the client's background issues and needs and therefore advocate for them in a more professional manner.

   So let's jump in now to the definition of criminal mitigation. Mitigation is a bio-psychosocial evaluation of the client's social and psychological history informed by the facts of the criminal case with appropriate recommendations as a means to minimize the negative legal outcome either in court or with a prosecutor. Mitigating circumstances reduces the degree of moral culpability or blame, which in fairness, sympathy or mercy may lead to a more favorable outcome for the defendant. The most important aspect of this definition is that we're looking at a bio-psychosocial evaluation. In other words, this isn't just a psychiatric or psychological evaluation. This is a holistic understanding about everything psychological, everything social, and everything biological about a client to help better understand the client's history and present circumstances so that either the prosecutor or court or both will have greater insight and empathy regarding the challenges and obstacles and issues in this person's life.

   And it's really the integration cumulatively of all these factors which help us understand who we are. And the way we get someone to care about an individual or care about anything is to understand details. We care most about particular subjects or particular individuals because of our familiarity. And one of the things that the criminal mitigation report does is help draw out details of the person's life, sometimes very intimate details, so that we can feel we have an understanding about what that individual has had to encompass in terms of their challenges and personal demons.

   So why is this CLE so important? I have two slides on this, but I just want to quickly summarize it because I think it's just crucial. When I was in law school, which was many moons ago, there was a discreet course on evidence, which I'm sure is still available, of evidence, of course, for civil litigation purposes and, of course, in criminal cases. And we were taught in law school, of course, that evidence is absolutely crucial because evidence compiled is then sent to a prosecutor who then evaluate the evidence for its integrity and the degree to which it can stand up in court against a cross examination.

   And then ultimately the facts of the case, and there's always a dispute in facts, is shifted out through the litigation in criminal court. That is really not what goes on anymore. Now we are in a system, particularly at the federal level, but also at the state level, where the vast majority of criminal defendants who have alleged to have done something wrong, plead out, most usually to a lesser charge. And there's been a major shift in power as a result of this. There used to be a tripartite system of criminal defense lawyer, prosecutor, and judge.

   The judge now is really, I think, far less important, especially at the federal system. I've heard in some courts that some of these judges are literally twiddling their thumbs because there're so few cases. And in reality, the prosecutors now extremely powerful. And because evidence is not going to be of evaluated in the court, the main concern is mitigation now. Now, I don't think every criminal defense lawyer will fully agree with this analysis, but I think they'll certainly agree at least in part, that this shift is central to how, I think, criminal defense lawyers probably practice as professionals in the United States. Some people have referred to this as a trial penalty, also, because of the significant cost of going to trial, the significant embarrassment. It's extremely cumbersome. And of course, the reality that going to trial can lead possibly to a much worse outcome than taking a plea deal with the prosecutor's office.

   If this is the reality for the large majority or even vast majority of cases, then clearly a crucial strategy and tool for the criminal defense lawyer now must be a consideration of mitigation for the client. In other words, explaining anything and everything at the pre police stage so that the client is humanized because the underlying facts of the case will not be examined for their probity and for their prejudicial content perhaps in the courtroom setting. So this is a major issue. I also noted one or two articles that have come out about this, but it remains a shift in the entire criminal justice system, which I think is extremely problematic because of the inability now to truly examine evidence at trial. And yet, because of the shift, it's a new reality that has also set in, leading, as I said, to using criminal mitigation experts in various ways at this much earlier stage.

   So now, really, criminal mitigation is a crucial tool. It's extremely effective, but like any tool for any lawyer, it has to be used strategically. You're not going to use it in every case. In some case, you're going to use it for certain issues. And also it depends when it needs to be used for a particular client, depending on the seriousness of the evidence and, of course, how the prosecutor views the case, as well. So that, I think, is a crucial shift in how we operate.

   I want to now look at some of the issues on the legal basis of criminal mitigation. I don't want to spend too much time on this, but there are a bunch of quotes that I always go back to again and again that, I think, help clarify for me why this is so important. From Justice Kennedy in Koon v. US, "It has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as unique study in the human failings that sometimes mitigate sometimes magnify the crime and the punishment to ensue."

   And that's exactly what criminal mitigation is about. It's about looking at the individual. Two people can have committed the same crime with a very, very similar fact pattern, but they are two individuals that came to undertake this crime because of their unique circumstances, life history, mental health issues, and so on and so forth.

   US v. Williams, the next quote, "District court should not hesitate to use their discretion in devising sentences that provide individualized justice." We're looking at this particular individual.

   US v. Johnson. It's a quote taken from the famous Booker case from 2005, which stands for the proposition that the guidelines are now effectively advisory and mitigation has found its rightful place in jurisprudence. Moreover, the guidelines do not require a judge to leave compassion and common sense at the door to the courtroom. Compassion and common sense. Where do we get that from? We get compassion from understanding a detailed history of the client, so we know who they are as an individual. And common sense comes from an understanding of the client's narrative of how he got into so much trouble, his role, and we'll talk about this after, his role, his participation, and his own particular history.

   The next quote, "The sentencing judge must give defense counsel the opportunity to present all non-frivolous arguments. The Supreme Court expects each individual's sentencing to be subject to thorough adversarial testing." Very crucial.

   This is one of the quotes I use all the time when I'm doing CLEs. "Surely if every man is to receive credit for the good he has done, and his immediate misconduct assessed in the context of his overall life, it should be at the moment of his sentencing when his very future hangs in the balance. This elementary principle of weighing the good with the bad, which is basic to all great religions, moral philosophies, and systems of justice was plainly part of what Congress had in mind when they directed the courts to consider as a necessary sentencing factor, the history and characteristics of the defendant." The only thing I'd add to this quote is that it's the history and characteristics of the defendant in the context of their clinical issues. In other words, it's not just a social history, it's a psychosocial history. It's looking at the person's development background challenges and so on given their psychological, emotional, and of course, even psychiatric health and well-being.

   This last quote always strikes me from US v. Myers. "If the 600-plus pages of the most recent set of sentencing guidelines have taught us anything, it is that the punishment cannot be reduced to an algorithm." In other words, looking at that crazy chart for the guidelines is one thing, but it completely omits the humanization that is necessary to understand who this person who is going to be judged. There is also a famous crucial Supreme Court case. Wiggins v. Smith from 2003, authored by, I believe it was Sandra Day O'Connor. Criminal mitigation and death penalty cases was changed forever through this decision which found that a lawyer's failure to procure a psychosocial report explaining the troubled background of a defendant in a capital case was an error of counsel. And really what happened was the lawyer in the case, I think, did have originally some background information on the defendant.

   I believe this involved a grizzly murder of an elderly person in Texas, but that the criminal defense lawyer failed to really mine the client's background for much more profound mitigating issues. And in fact, it turned out that the client did in fact suffer a history of serious issues, including abuse, developmental challenges, and so on. And so, mitigation is now the law of the land in capital cases, but realistically it's been used in a much wider variety of cases for criminal defendants. And I can tell you personally, I'm called for criminal mitigation evaluations for just about everything you can think of, including, obviously, serious cases, such as white-collar crime, murder, sex crimes, and so on, but also DUIs and all sorts of other things.

   The history of the guideline in the last two decades leading up to 2005 was determined almost exclusively by the sentencing guidelines. It was really promulgated under the authority of the Sentencing Reform Act of 1984. The guidelines had the goal of creating honesty in sentencing and reducing the unwarranted sentencing disparities prevalent in the indeterminate parole-based scheme operating at the time. In other words, the idea was to have someone who had committed a crime in New York and someone who had committed a crime in Illinois with the exact same fact pattern, seemingly, to receive a very similar outcome at sentence. The guidelines replace the indeterminate system, greatly reducing judicial sentencing discretion by establishing narrow sentencing ranges based on a series of factors, including the type of offense, characteristics of the victim and offender, and of course, the criminal defendant's history.

   But one of the things that came out from all of this was really the parsimony principle under Section 3553(a) that really considers a very broad range of possible mitigating factors. And the quote from that section is, "The court shall impose a sentence sufficient, but not greater than necessary to comply with the purposes of the statute." The federal sentencing statute goes on to direct courts to consider almost anything related to the defendant or his particular punishment. The court, of course, should consider the nature and circumstances of the offense and the history and characteristics of the defendant, the need for the sentence imposed with particular consideration to reflect the seriousness of the offense, to promote respect for the law, and provide just punishment for the offense to afford adequate deterrence to criminal conduct, to protect the public from further crimes of the defendant, and of course, to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner possible.

   And of course, when you look at the federal sentencing statue and these factors, one can only direct their mind towards mitigation. This is exactly the role of the clinical expert, who does the psychosocial evaluation for criminal mitigation purposes.

   And the most important quote, I think, 18 USC, 3661, "No limitation shall be placed on the information concerning the background character and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." And that's really where we start in criminal mitigation. Anything and everything from the person's background, personal life, childhood, adolescent development, community, and so on and so forth, anything and everything that can help explain to me as a clinical expert who this person is and how they got in so much trouble is valid information to include in the mitigation report so that the prosecutor and or judge can in turn, understand this individual as a human with human failings and challenges and issues that will allow the prosecutor or judge to understand the person in a more detailed and empathetic way. And ultimately, we hope that the outcome will lead to greater compassion.

   One of the outcomes of all this, and particularly for the legal basis of mitigation, is that in the memorandum of law presented by the lawyer for sentencing purposes, it now really becomes crucial to interweave the criteria into key mitigation factors outlined in the mitigation report itself. And this really affords the prosecutor judge to consider and understand of the client's psychosocial issues as legal mitigating factors rather than simply background information established for the sake of argument. So my main argument here is that criminal mitigation is not simply an effective tool for the sake of argument, but a necessary legal factual underpinning to support the factors of 18 USC, 3553(a) and other relevant case law. So, where are we now? In the post Booker age, the court really has unfettered discretion to consider any and all evidence, and a wide range of arguments may now be considered by the criminal defense lawyer through the mitigation evaluation.

   One of the questions that has come up over the last 10 years, and I've discussed this with several lawyers, is could we now argue that there is an obligation to mitigate? At one time, there was a question of is there a right to have a lawyer? And that was settled in the really landmark, I think, 1963 Gideon v. Wainwright case that established that under the constitution, people are indeed entitled to legal counsel in serious cases, especially for felonies. So the question is, should clients be told and afforded the opportunity for mitigation, especially in felony cases, as well? Should the client be aware that there is this strategic tool called mitigation where a clinical expert can look into their background and consider their personal issues and so on, which may help not only understand who they are and how they got into so much trouble, and of course, their psychosocial and psychiatric issues, but that the advocacy process may be incomplete in the absence of undertaking the mitigation evaluation.

   It's also very interesting that in 2012, the American Bar Association House of Delegates adopted resolution 107C, which, and I quote, "formally urges criminal defense attorneys to address client civil, legal, and non-legal problems to linkages with other service providers. The report accompanying the resolution makes it clear that all defense lawyers are required to provide comprehensive representation, including using other service provider like social workers when appropriate.

   And one of my main arguments as a mitigation expert, but as a legal consultant in general, having both a background in law and mental health, is that there are extra legal supports that lawyers require that need it to be considered on a regular basis. This is very common, by the way, for civil litigation lawyers. For example, my background in law school were internships in torts and medical malpractice. And in New York State, at least, every medical malpractice claim requires the extra legal support and affidavit of a physician who can attest to the veracity of the purported harm or injury of the plaintiff. Extra legal support in civil litigation is used all the time for all sorts of purposes, and I think it needs to be considered as a regular part of criminal defense lawyer practice, as well.

   And this CLE particularly focuses on the specialty of mitigation. So, I want to look at the purpose of mitigation specifically as it affects the client. First and foremost, as we've already said, mitigation humanizes the client through a sympathetic narrative, and it induces empathy for the reader. And that's first and foremost, what I keep in mind throughout my evaluations and whenever I write reports as a means to achieve this for, of course, the prosecutor and judge.

   Next, we want to document the client's life history. I read a lot of biographies. That's not what we're doing here. We want to capture the crucial areas of the client's life that help explain how they got from point A to point B to point C to point D. We don't want to include everything and overburden the reader.

   Next we want to contextualize the client's conduct. And when I say contextualize the conduct, I don't just mean with regard to the criminal issues, but in general. For example, if the client has a work history in one particular area, what attracted that client to that particular area of employment? Or if the client, for example, is well educated and completed programs in engineering and science and so on, what was it about that that attracted the person? So we want to contextualize and understand the client's conduct, and ultimately, this helps to understand better his decision making and judgment, not just in the area of the criminal matter, of course, but in general, as he progresses in his life.

   The next major areas stress the family's physical, psychological and financial hardships. Obviously, depends on the particular individual. I now have two cases now where the clients have very young children, and the clients really are outstanding, parental caretakers providing wonderful support, love, and care, and the children idealize their fathers as really positive role models in many ways. And it's so crucial that the client has the opportunity to return as soon as possible from incarceration to provide support for these children because we want those children, of course, to grow up in a safe and healthy manner, as well. We want to illustrate the client's community educational and employment ties. It's so important in these cases to explain that many of our clients are really quite outstanding community members, and they've had consistent employment. They've taken their educational opportunities quite seriously. And these are very positive aspects of a person's life we want to stress in a way that allows the reader of the report to understand that this person is someone who can really commit themselves to good citizenship.

   Next purpose, obviously, is to explain the client's remorse and regret, that is contrition, to sincerely explain that the client is sorry for what they did, but more importantly, the client understands his wrongdoing, that whatever misjudgment or whatever poor decision-making the client did, overarching this is now an understanding that it was wrong and the person feels bad. And that is an crucial idea that we need to get it across that the client, for all the mitigation we're doing and the preparation for sentencing or pre-sentencing, whatnot, at the end of the day, we need the client to be able to translate to the prosecutor, to the judge, the simple idea of, "I recognize that I did something wrong, and I am deeply sorry." Now obviously, if the client completely denies what he did, it's a whole other matter. And, of course, a trial may be necessary, but for purposes of a plea or sentencing, this is what we need to consider.

   Next. And this is absolutely crucial. Professional expression can replace self-expression. And that means that we have so many clients who really have grown up without adequate education or parenting or care, and they just don't have the psychological wherewithal. They don't have ability to advocate for themselves.

   Just like the client absolutely requires a criminal defense lawyer to guide them because the criminal defense system is so complicated, and they need legal counsel and advice and direction, so too, they need a professional clinical expert who can undertake a psychosocial evaluation as a means to help with the mitigation, to express their particular issues in that area. It's not just a mental health report. It's crucial to understand that the goal here is not to say this person has this or that psychiatric issue, even though they might have mental health issues. It's to present a much more holistic understanding about the person's life and progression. And clearly, if there are mental health issues, and there almost always are, they should also be included.

   There is something called also the single document theory, which basically means we want to offer the prosecutor judge a single mitigation package, because sometimes a criminal defense lawyer is very well-meaning and wants to provide documents showing consistent employment, great education, and so on and so forth.

   And that's wonderful, but it's a lot to read. It can be cumbersome, and it's best sometimes to take those aspects of the person's life and shrink them into a digestible paragraph or two and insert it into the mitigation report so that within a single document, the prosecutor judge can review this person's life, their psychosocial history, psychiatric issues, and whatnot in one read. Sometimes, it could be a peace offering in the mitigation report, especially if there's a great deal of contention between the prosecutor and defense. Sometimes, the mitigation report is used primarily to counter the government's pre-sentence report itself because as I said earlier, so often there are clear omissions with regard to the client's family issues, mental health history, and so much more.

   And finally, the last purpose is... I've had quite a few calls over the years from lawyers who have said, "Look, I need a conceptual way to better understand how my client had gotten in so much trouble. I need this as a strategic tool, so I can better advocate for the client as a professional. And I can only do that if I understand who this client is." And therefore, the mitigation report or perhaps even a general clinical report is required. And that certainly has validity, as well. One of the most important issues in criminal mitigation, I have this on a separate slide for purpose, is that we want to disabuse the prosecutor and judge of bias and false assumptions and prejudice.

   Sometimes, there are assumptions that patterns exist where they don't exist. And it's very important that we disabuse the prosecutor and judge of this. This is particularly true in certain kinds of cases. For example, white-collar cases or very middle-class clients that commit crimes, and the assumption is, "Look, this is a criminal defendant who had every opportunity. They went to good schools. They had a profession. They were making good money, and they blew it. So they really need no mercy." And that's a horrible, horrible way to approach a criminal defendant.

   Every criminal defendant deserves mitigation, and we can't make assumptions about who this person is or their mental health history. And I've had many white-collar cases where everything looks perfect in this person's life, and you look more closely at their childhood and their life and so on, and you pick up the home that is surrounded by the white picket fence, and you look inside, and the person has suffered trauma. So too, with pornography and sex cases where the prosecutor just thinks the very worst. And, of course, these are very serious cases, and there may be victims who have been harmed in terrible ways. Don't misunderstand me. But we want to make sure that the person is not demonized, that they're understood as real human beings. And I think that can only be accomplished by eliciting from a clinical expert a real detailed psychosocial history.

   Prosecutorial bias, I think, remains the major reason that mitigation is undertaken. And the truth is, prosecutors don't really care about criminal defendants. Let's be honest. They care about the prosecution, and hopefully, they care about the victims, but they don't really care. And in a sense, they're not really obligated to care about the client's psychosocial background and their traumas and challenges in life and how they got to be in so much trouble. And really, mitigation fills that void.

   I want to go through now a few of the key ideas in mitigation. As a mitigation expert, I have to tell you very honestly, I use these slides as outlines for my own work, and I use my own book. I go to it again and again, and I just updated it. It was republished last month as the seventh edition, but I want to review with you some of the key ideas that I always think about when I speak with clients.

   First, was this criminal issue an aberrant decision? In other words, is it something that exists as something very unusual given the client's usual kind of conduct? Is it just misguided? Is it an error in judgment? In other words, is this a decision or a behavior that the client did that was just a terrible mistake? Was it foolish? And so many of us have made so many foolish mistakes. Think about our lives as teenagers or young adults, the mistakes that we made, and yet, we were able to overcome them through family or community support. And we were able to attend college and have good careers and still be good citizens.

   Is this something that the client did in an thinking moment? Was there a diminished capacity? Diminished capacity for criminal defense lawyers is always associated with psychosis, that the person, because of a psychotic disorder such as schizophrenia, have impaired judgment. But diminished capacity in the mental health world is much broader. It really speaks to the individual's capacity to make decisions and process information and so on because they're either healthy or not healthy. And part of the diminished capacity can be due to major life stressors as I have on the slide here. And that could be children who have illnesses or loss of employment or change in community, all sorts of stressors and traumas that the individual may have suffered in the months, or even years, leading up to the criminal matter.

   Some of the clients also commit these issues, and I've seen this in several white-collar cases, because they are actually think that the behavior is normative. That is that they believe other people who work in their areas and have similar duties and responsibilities as colleagues conduct themselves in a similar manner. The client may be right. The client may be wrong. But it speaks to the client's understanding about their conduct. And this gets to the next point on the slide that we want to really explain as best as possible, if possible, that the client is not evil, that the client needs to be understood as a human being whose had real failings, and perhaps deficits, in their life and so on, and that's how we understand their behavior in this criminal matter. But they're essentially not evil.

   This is particularly important, as I said earlier, for cases with borderlines. It's something that's really underestimated by criminal defense lawyers because many of these borderlines are mistaken for psychopaths, or because they have secondary problems such as drug abuse, they're considered primarily as drug abusers. And therefore, they're seen as people who have this pattern of misconduct, when in fact they have interpersonal character pathology, such as borderline personality disorder, that much better explains clinically, socially, psychologically, developmentally, and so on, what their issues are.

   So we want to look at all these key ideas in a cumulative fashion and hopefully, look towards, if possible, a redemption. There are key ideas to consider in mitigation. These are questions I ask myself with the client, and I want to go over them very quickly.

   First, what did the client's past look like? What role did the client play, meaning what role did the client play in his life in general and in the current criminal matter? Will the client likely repeat his behavior? Will incarceration promote deterrence? What will promote justice and promote respect for the law? What will the client's experience be like in prison? Does the client require educational, vocational, medical, or psychiatric assistance? What kind of rehabilitation is needed and has it already been started? The latter part is really something we don't usually consider. We think of rehabilitation as future oriented, but in so many cases, rehabilitation has already been started, and it could have been, in many ways, especially in drug or alcohol related cases.

   Next has the client accepted responsibility for his wrongdoing and to what extent? In other words, not just is there remorse and regret, but in what ways has the client, in a concrete way, shown that he has truly taken ownership for his wrongdoing?

   Next has restitution already started? Is it possible? This is particularly true, obviously, in cases where there's financial loss, where the client in weeks or even months, really, before dealing with the prosecutor office can make financial restitution. What is a fit punishment? Has the client already been punished? I see this, by the way, a lot in criminal immigration cases where the client or the family has already been punished in profound ways.

   Next, what is the least harsh punishment? What are the alternatives to jail that would better serve the client, family, or community? This is absolutely crucial, especially if we see clients who are really already in many ways on a praiseworthy path with regard to employment or family or educational pursuits or even personal hobbies and interests. And especially, where we can have strong character support letters from other client's family or friends.

   Next who will be harmed or protected by incarceration? Very important to understand, especially where there are specific victims involved in the case. What are the family's needs? Right? To what extent does the client have family members who would suffer terribly in his absence, if he's incarcerated? What will the client's future look like? We want the client, at the end of all this, to come out a better person. Right? We want them rehabilitated, even in the context of deterrent and so on. We want growth. We want this client to be able to function and work consistently and live in his community as a good community member. What will achieve that? And finally, are there any cumulative mitigation factors that we need to consider to help us understand how this client got to be in so much trouble and how we can help the client with consideration for community justice deterrence and so on?

   I use a shorthand often when evaluating these cases, and I have a specific chapter on this called the 10 Rs of Mitigation. I'll just go through very quickly. The reality. That is the first R, meaning a full narrative of what really occurred, accuracy rather than exaggeration.

   Rea, meaning men's rea. Not intent like we learned in law school, which is very important, but intent in a broader sense, volition. What was the client's decision making and so on? Recency is the next R. When did the crime occur? Repetition, the seriousness of the crime and the overall record. Rung. Sorry that's the next R. The seriousness of the crime involved. Restorative. Has the client righted a wrong? Can the client's wrong be right in some way? Rehabilitation. Has the client changed? Will the client change? Remorse and regret. Roles. Again, the role not just of the client's criminal issue, but in general, the roles prior to the criminal matter in their life as a good father, community member, husband, and so on. And finally, the last R, recommendations.

   This slide, and I use it myself. It's a shorthand. The 10 Rs of mitigation to help understand and to contextualize the criminal mitigation matters.

   When to use mitigation. The advantage of pre plea mitigation is that the prosecutor considered mitigation early, before prejudice is set in. However, the advantage of utilizing mitigation after the plea in federal cases is that the mitigation expert can review the PSR. And if there are deficiencies in the PSR, as they're always will be, at least in my experience, it can be countered through the mitigation report. Mitigation is like voting in Chicago. It's vote early. Vote often. It's never too early to start mitigation for pre plea or prosecutor purposes. Some lawyers use it just for strategic purposes. I've had one or two cases where lawyers have called me for parole hearings, for probation hearings.

   And actually, I just had a consult with a case in the Midwest, I think it was Chicago, for a clemency case. Basically, a criminal defendant went to prison after being sentenced. He'd been there for 20 years for a very serious crime he committed as a young adult. I think age 18. And the lawyer wanted a criminal mitigation report explaining the client's background and traumas in life and family and so on, including his outstanding performance in prison as a model prisoner, really focusing on education and just being a model prisoner for two decades, as a means to obtain clemency through a mitigation evaluation.

   There's a big question as to who should do the mitigation cases. I know many people that do mitigation don't have clinical expertise. Some are psychiatrists. In my opinion, this is ridiculous. The mental health issues and the psychosocial history are all important. It should be undertaken by a clinical expert that can interweave into a coherent whole, all of the disparate aspects of the client's history, clinical and nonclinical. I don't understand how you can take a social history of a client without considering clinical issues. I don't understand how clinical issues such as childhood depression or anxiety or trauma can be understood in the absence of the social context and family support or neglect or abuse that that particular client experienced. Ultimately the role of the lawyer and the social worker or the mitigation expert who's doing it should compliment and balance one another. The factual analysis of the case with consideration of the client's particular needs and proclivities and mental health and his family psychosocial issues should be understood by the lawyer as something that helps them better advocate in a more holistic way for the client.

   One of the best cases I ever did, this is an early case. It was a race based case in South Brooklyn in New York, and the criminal defense lawyer read my report, and he loved the mitigation report. He said, "I'm not going to use it." And I said, "Why?" And he said, "For this particular judge in this particular situation, it just doesn't work." And he said, "Unless you can direct it in a way that I think would be helpful for this particular judge in this particular case." And I did. And we ended up with a particularly wonderful outcome. And this was a great example of a lawyer that was working closely with me, and I was working closely with the criminal defense lawyer, where we were very open and honest with each other about how to understand the client and his issues, given the facts and given the particular judge and the prosecutor's particular opinion on the case as a means to achieve a good outcome for the client given the criminal defense lawyers professional abilities and given my professional abilities as a mitigation expert.

   Who most benefits from mitigation? Clearly people with mental problems, those who have suffered extreme hardships, those who have suffered clear abuses and interdependent pathology within their childhoods. Also, clients who have poor language skills, communication skills, clients with poor adaptive or executive skills. A lot of our clients are first generation immigrants to the United States who've had criminal issues, and they find it very difficult to contend with authority if they have poor language skills, and they could be very frightened. And they may have grown up by the way in countries where government were very corrupt, where police were inept, and they suffered systemic problems in their communities because of poverty and drugs and so on. So we have to be very, very careful when working with these clients to understand in what ways can they, and they cannot, advocate for themselves.

   Mitigation is also useful because we can help explain a client's psychiatric diagnosis without the label. This is a major problem for criminal defense lawyers, because, of course, there's a fear in so many cases that the client would present with a diagnosis of psychopathy or antisocial personality disorder, which are terribly stigmatized. But through a psychosocial evaluation mitigation report, we can explain the client's history and conduct without the label itself. And frankly, the label is only good in so far as it helps us to understand the clinical psychosocial history of the individual.

   With the time remaining, I want to look at how we actually undertake these evaluations. The main strategic tool for all mental health practitioners is something called the psychosocial evaluation. It's really a strategic and systemic tool that provides an in-depth understanding about the client, his world, and issues. In turn, the lawyer may develop strategic tools and avenues from this information.

   The psychosocial assessment is conducted in order to understand the client with particular consideration to his childhood developed stressors, traumas, and challenges with particular emphasis on quality of relationships to immediate and extended family, sometimes called family dynamics, with particular emphasis on the individual's health, including psychopathology from early childhood onward. We want to understand the client's interaction with his home, environment, community, particularly in the context of work, education, interests, and socialization. We very much want to understand psychodynamics. That refers to our motivations, our decision-making, some of which are conscious and some of which are unconscious, but that this is a significant influence in our daily decision-making, but also broader-decision making, how we conduct ourselves in our lives morally, ethically and so on. We definitely want to understand the client's perceptions of people and issues, how they relate to people, if the client has issues of anger or frustration of loss, challenges, and difficulties.

   And lastly, we want to humanize the cases and the individual as much as possible. The psychosocial evaluation used to elicit information from the client in order to undertake the mitigation case is extremely pliable. In other words, you can understand anybody. And I actually give lectures to civil litigation lawyers to use this model so that they can better elicit material from their client to understand the harm or the injury that the client has suffered in the context of personal injury, medical malpractice, or whatnot. But this is what I use, and this is the standard approach. There are many, many issues explored in the psychosocial evaluation. I have some of them on the next slide, but again, we look at anything and everything in the person's background and development to understand who they are. Clearly, if the person has been in the military, we're going to look a lot at that to see if there's been trauma, if the person has been involved in combat. Clearly, if the person has never been in the military, it's crossed off, and we don't need to spend any time on it.

   There are many evaluation tools that criminal defense lawyers should be aware of. Obviously, I think mitigation is absolutely crucial in today's world, not only because of trial penalty and the shift in the system, as I mentioned earlier, but because as I also mentioned earlier, the PSR is so often deficient. But there are also other tools. There's neuropsychological evaluations, psychosexual evaluations, psychological evaluations, psychiatric, social work, medical psychodynamic, and so on. And I talk about these in another CLE, but ultimately the more information, the better. I will tell you a very interesting story. I did a very serious murder case. I think this was about two years ago, and after I finished my criminal mitigation report, a colleague suggested that I read a neuropsychological evaluation undertaking with a battery of tests for a client in a very similar case. I don't do testing. I don't do neuropsychological testing, of course, but anyway, I read the neuropsychological report after all these tests were completed.

   The amazing conclusion was that the elements and major considerations in my conclusion were very, very, very similar to the neuropsychologist's conclusions. In other words, a psychosocial evaluation can elicit extremely detailed and important clinical information in the absence of any testing and sometimes do better than testing for various reasons. But I did want the criminal defense lawyer, who's listening today, to understand that there are tools available, but that at the end of the day, mitigation is always needed, as I said, to counter the PSR and because of the shift in the criminal justice system. One of the major areas of concern is trauma for so many of our clients. Children must develop in a manner that permits them to gain a sense of wellbeing in a predictable, certain, safe, and stable, secure home and community environment with healthy, emotional attachments and physical bonds.

   And clearly, in the absence of this, the individual suffers trauma. And the reality is that many of our clients have, in fact, suffered trauma at earlier developmental stages, particularly in childhood and in adolescence. A commonly used, I guess, approach to this is the Adverse Childhood Experiences, ACE, which looks at maladaptive risk behaviors that emerge from negative life experiences, in particular from abuse and/or neglect that the child or teenager has suffered within the home or within the community in general. And I considered it, as well, for just about every case that I do in one form or another, if not directly as a test, then certainly as an outline. The effects of complex trauma is so serious that I have a separate CLE on it, but it's extremely important to understand that our clients that have suffered trauma are not traumatized in the sense of just PTSD, post-traumatic stress disorder, which is extremely important consideration.

   But I want to stress that so many of these clients that we see, neurologically have changed. That they're unable to process information and think through decisions and make executive-functioning judgements for themselves in even key areas of their lives that is helpful to them. And that's why so many of these clients are on a survival mode and they undermine their own best interests. They're unable to focus on health and well-being and development. And this is a very important consideration for so many of our clients.

   I would say the vast majority of clients I've seen who have drug problems, especially chronic or intermittent abuse of a serious, whether it's alcohol or narcotics or whatever have indeed suffered in one form or another, if not normal at what we would call trauma that leads to PTSD, complex trauma. And the effects of complex trauma on a person's life remain extremely systemic so that it affects just about every area in their lives so that their sense of stability is undermined, their sense of security and safety is permanently jeopardized, and they have no sense of predictability and certainty in their lives. Their self-esteem is harmed, their self confidence, their self worth. And ultimately, they don't value themselves.

   We also want to look within criminal mitigation at not just the individual in the home, but we want to look broadly at the community. We want to look at whether the client has grown up, for example, in a lower-socioeconomic community where there's violence or drugs or gangs or prostitution or firearms and so on. And this is crucially important because we want to know what does this client see on a daily basis walking to a school? What does this client have experienced within this community when going to the local grocery store to pick up food for his home?

   What I've tried to do today is provide a very broad overview of all the relevant aspects of criminal mitigation, given the challenges and obstacles, clinical issues, developmental tools, and how we understands our clients so that we can advocate for them in a much more complete manner and recapture their humanity and allow the reader of these reports, whether it's the prosecutor or judge, to understand their particular failings or challenges or obstacles or traumas they've suffered at earlier developmental stages so that they can indeed really have the best outcome possible, not only from a personal perspective or from a criminal defense perspective, but from the perspective of really justice itself.

   Again, please don't hesitate to email me if you would like a redacted copy of a mitigation report. Put in the subject line, complex trauma. Put your personal information, so I know it's a real lawyer, and I will be happy to send back to you a sample copy for your review so that we can really integrate in the CLE theory and practice. Thank you very much. And I hope that this has been beneficial to you.

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1h 2m 12s

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