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White Collar Criminal Mitigation: Sentencing in the Post-Booker Age

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White Collar Criminal Mitigation: Sentencing in the Post-Booker Age

This course examines criminal mitigation in the instance of white-collar and middle-class defendants. Here, attorneys who may represent white collar criminal defendants gain an understanding of both the purpose and challenges of mitigation. Because the white collar criminal defendant is often demonized as a result of bias or prejudice from the community and prosecutor's office the psychosocial background issues must be understood in detail given particular challenges for this kind of criminal defendant in an effort to more fully advocate for them.

Presenters

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

Transcript

Mark Silver: My name is Mark Silver and today I'm going to be presenting on one of the most important topics in mitigation for criminal defense lawyers, but something that is not usually thought about, and that is white collar criminal mitigation, particular consideration for sentencing in the post-Booker age. I'm a criminal mitigation lawyer. I'm a criminal mitigation expert living in New York City. I have done about 2,000 cases, primarily for immigration defense lawyers. Many of the immigration defense lawyers also defend our clients for those who have committed crimes, felonies, CAMTs, misrepresentation, fraud, and so on when entering the United States. Although, I've also done many mitigation cases for criminal defense lawyers proper for both state and federal court, including CJA cases on a wide range of subjects. The reference today is called Handbook of Mitigation in Criminal and Immigration Forensics. It's my book on criminal mitigation. It's the seventh edition, which came out just a few months ago.

   The subtitle of the book is Humanizing the Client Towards a Better Legal Outcome. And there's no more important application for humanizing the client than for white collar criminals really because of what we're going to be talking about today and that is how so many of these clients are demonized, that so many of these clients present with issues that are seen as unforgivable or that are so terrible in the eyes of the prosecutor that mitigation is not deserving. For anybody that wants to see a redacted sample, please do not hesitate to email me at [email protected] Please, please put your full name, address, law office and all your other pertinent information so I know you're a real lawyer.

   Unfortunately, I get a lot of spam and I just want to make sure that I'm sending this back to a real lawyer. And just as importantly, that I'm a opening up a real email on my desktop. Put in the email the words white collar sample. I actually have two or three different kinds of white collar sample mitigation reports. They're all for federal courts that I have done.

   I want to clarify at the outset that when I say white collar issues, I'm really talking very broadly. That is criminal defendants who have been in administrative positions, clearly those who have committed fraud and theft, particularly within the financial industry and securities fraud and so on, those who have been involved in misreporting of information in various guises, but also those who work in areas that would be considered professional misconduct so that they may not only have a white collar criminal legal issue, but they may also have a professional misconduct issue that needs to be addressed in an administrative proceeding.

   As a result, the CLE is really targeted obviously towards white collar criminals, but really defense lawyers in general who tend to focus on clients who come from a middle class background. As I said, white collar crime at least as I understand it should be understood broadly to include middle class defendants who are in these kinds of administrative positions.

   One of the reasons that I'm focusing on this so heavily today is that so many of our clients and so much of mitigation in the last 20 years has focused on clients who come from really very deprived socioeconomic backgrounds, particularly African-Americans and so on who have experienced a wide range of complex traumas in their early development, including physical, emotional abuses growing up in areas where there's significant crime and drugs and so on. But it's crucial to understand that mitigation is for everybody, including white collar criminal defendants and those in administrative positions, professional positions, and so on. To be clear, mitigation has been used in a wide range of areas. Obviously we're going to be talking about white collar issues today, but it's really been applied and I have this in many other CLEs, as applied to inadequate PSIs because every single PSI that I've ever seen from a probation officer is just wrong.

   It emits psychosocial information from the person's background, family information, community information, but much more importantly, mental health information. And so many of the middle class and white collar criminal defendants that I see are presumed to be healthy, not just physically healthy, but psychiatrically stable. When in fact, there's so many issues that are missed on their behalf just because they show up to court in proper attire and they seem stable in their behavior and presentation, and so on. Other specialty areas of mitigation include sex crime and porn, for which I also have separate CLEs, complex trauma, which is crucially important, borderline personality disorder, Adam Walsh Act, criminal immigration as I previously noted, domestic violence and others.

   So I want to look at the program outline today. I want to look at a quick overview of mitigation, another quick overview of mitigation in the post-Booker age. Then I want to spend the bulk of the time looking at special issues specifically for these kinds of criminal defendants and how mitigation can assist them, and particularly looking at special case examples that I have from my own practice. And finally looking at character types.

   So first an overview of mitigation. Mitigation I've noted in previous programs. Mitigation is a biopsychosocial evaluation of the client's social and psychological history, informed by the facts of the criminal case with appropriate recommendations as it means to minimize the legal outcome either in court or with a prosecutor. Again, we're trying to minimize the negative legal outcome. Mitigating circumstances may extenuate or reduce the degree of moral culpability or blame, which in fairness, sympathy or mercy may lead to a more favorable outcome for the defendant. And again, I cannot stress this enough, white collar criminal defendants need this and deserve this as much as the career criminal defendants who we might see who have grown up in a lower socioeconomic and deprived community and home environment.

   The purpose of mitigation is to humanize the client through a sympathetic narrative, contextualize their conduct, illustrate family members who may be dependent on them, show the client's remorse and regret, but most importantly, professional expression can replace self-expression. White collar crimes are usually very complex in terms of the criminal code, statute, case law, and so on. So too many of these clients really have complex mental health issues. The fact that they appear high functioning because they have perhaps one or two or three college degrees and they have a successful professional career does not suggest that they do not have mental health problems that got them into a lot of trouble.

   And so, it's not just documenting the mental health problems for the client as we often see in mitigation, but really looking at the broader psychosocial background of this individual to really humanize this client because they're so often demonized.

   It's important to stress that the Federal Sentencing Statute of Court 18 USC 3553(a) begins with an overarching mandate, court shall impose a sentence sufficient, but not greater than necessary to comply with the purposes of the statute. And of course, 18 USC 3661 noted 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 it's so important with white collar defendants because sometimes we're almost embarrassed. With criminal defendants that come from a very deprived, lower socioeconomic, trauma filled background, we want to say, "Look, this person's come from a terrible, terrible situation."

   And here with white collar criminal defendants, we're almost embarrassed to say, "Look, our client grew up with wonderful family, a wonderful education. He had a wonderful professional career, and yet he got himself into so much trouble." And the defense lawyer at times feels that there's no mitigating factors. When in fact we need to dig underneath, do a formal mitigation evaluation because so often there really are crucial mitigating factors to look at.

   And of course, the statute goes on to direct the courts to consider almost anything related to the defendant and his potential punishment. And it's really important because now the memorandum of law presented by the lawyer for sentencing purposes, it's really crucial to interweave the criteria in the statute into key mitigation factors outlined in the mitigation report prepared by the clinical expert. And this is truly going to afford the prosecutor and judge to consider and understand the client psychosocial issues as legal mitigating factors, rather than simply background information that's been established for the sake of general argument.

   So if I had to put it succinctly, I would say that criminal mitigation is not simply an effective tool for the sake of argument, but a necessary factual underpinning to support the factors of 18 USC 3553(a) and other relevant statutes and case law. It's also really important to note and I found this that in 2012, the American Bar Association House of Delegates adopted resolution 107C, which in quotes, formally urges criminal defense attorneys to address clients' 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 providers like social workers when it is appropriate. And it's so appropriate for white collar defendants. So a major question, of course, that comes up again and again is, is there a legal need to mitigate in every single case?

   My own personal opinion is that because the PSI prepared by the probation officer is so deficient that we need mitigation in each and every case to look clinically at background information, psychosocial history, family, community, and most importantly, mental health and psychiatric issues. There is an increasing question I've been getting mostly from nonprofit agencies in New York and elsewhere as to whether, if you don't have mitigation, is it grounds to appeal? Of course, I don't know the answer to that outside obviously of death penalty cases because it's mandated there under Wiggins v. Smith, the O'Connor decision from 2003 from the Supreme Court, which noted that the criminal defense lawyer must procure a very comprehensive mitigation packages in death penalty cases. It sort of reminds me of law school of the Gideon v. Wainwright 1963 case that mandated that criminal defendants in felony cases should and must have legal counsel and representation.

   So the second thing after looking at this overview of mitigation is just looking at it in the context of now living in the post-Booker sentencing age. U.S. v. Booker, the 2005 decision, basically stands for the proposition, as I'm sure everybody knows at this point that the guidelines are now effectively advisory and mitigation has rightly found its place and jurisprudence. In other words, mitigation is not just something that helps to find background information to support mitigation for a case, but that mitigation is a cornerstone for pre-sentence and sentencing advocacy by the criminal defense lawyer in an effort to understand anything and everything about our client.

   This is from quite a few years ago, but I was looking for updated information and it will be forthcoming. However, clearly sentences, particularly for white collar defendants, are becoming increasingly separated from the sentencing ranges calculated under the guidelines. Prior to Booker, judges granted non-government sponsored below guideline range sentences in only 5.5% of cases. In the year after Booker, that number jumped to 12.5%. Since then, there has been a steady increase of below guideline range sentences, rising to a peak in 2010 and current research is still required, but clearly the trend is in a very positive direction for those interested in mitigation as a means to move away from black letter sentencing guidelines.

   It really means that judges following arguments raised by counsel at sentencing are now increasingly willing to exercise their discretion and judges look at sentencing for defendants, even in white collar cases in a manner that is clearly outside of the guideline range, taking it into consideration, increasingly mitigating factors, some of which we'll be talking about today.

   Clearly now post-Booker the court now has unfettered discretion to consider any and all evidence at sentencing. And clearly a wide range of arguments may now be considered and submitted at the sentencing phase. I always include a few of my favorite quotes that I've collected over the years. The first is 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 has a unique study in the human feelings that sometimes mitigate, sometimes magnify the crime and the punishment to ensue. That's from Justice Kennedy.

   In U.S. v. Williams, it was noted district courts should not hesitate to use their discretion in devising sentences that provide individualized justice. From U.S. v. Johnson, the guidelines do not require a judge to leave compassion and common sense at the door of the courtroom. I love that.

   More recently from 2011, in determining the sentence to impose, the court may consider without limitation any information concerning the background, character and conduct of the criminal defendant. That's from Pepper v. United States. Another very interesting quote, which really I think is very relevant for us now post-Booker. If the 600 plus pages of the most recent set of sentencing guidelines has taught us anything, it is that punishment cannot be reduced to an algorithm. That's from a 2005 decision.

   And finally, this decision from United States v. Adelson from Southern District of New York in 2006, 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 judgment was plainly part of what Congress had in mind when it directed the courts to consider as a necessary sentencing factor the history and characteristics of the defendant.

   I love the first part of this quote. Surely if every man has received credit for the good he has done. And so many of the clients we see in white collar or middle class defense cases, they really have done a lot of good. I mean, we have a lot of clients I see in my practice in this area who have engaged in the community appropriately and have contributed to the community. They have attended college and university. They have of a wonderful family. They've initiated a professional career. There are many positive aspects, the individual's character and his behavior within the context of his family, community, work, and so on, and it needs and must be balanced against the criminal defense issues.

   What I want to focus on now are special issues within the context of white collar mitigation. The most important thing that I've come across is this. You need to disabuse the prosecutor and even the judge of bias and prejudice. We have so many clients that come from, as I said, lower socioeconomic backgrounds where they suffered trauma and abuses and so on. And we have these clients in white collar cases where they come from very middle class or upper middle class backgrounds, they're educated and so on.

   And a lot of times I feel there's a hostility and anger and even jealousy when a criminal defendant with a white collar case comes in with a $2,000 Giorgio Armani suit. There's a sense that it's unforgivable, that this individual's had every opportunity in terms of education, family, professional career, and even money. And it's unforgivable that they've done something that has led to this criminal allegation and that there's no excuse, right? The person who has suffered all sorts of traumas and came from a horrible background, well their excuse is there.

   And it just seems to me, it's very unfortunate that people who strive throughout their lives toward educational excellence and hard work, that they're now penalized for their transgressions without any real regard for the excellent citizenship that they have provided the community until that point. And I've often joked with criminal defense lawyers that I find that criminal defendants who have a long history of criminal conduct from their early childhood throughout their adolescence, young adulthood, and so on seem to sometimes be viewed more sympathetically than the white collar criminal defendant who has a single charge because the person who has a career criminal history may have come from a very deprived background. And it's all the more reason to humanize these individuals. We just assume when we see these cases in the paper that the individual's greedy.

   I had this white collar case. This is quite a few years ago. It was a client in an administrative financial position. He directed funds to himself, which was obviously illegal. This was at a well established bank in New York. He had worked there for several years, but the client did not change his lifestyle, except to buy a mid-range priced car. He donated the bulk of the funds to charitable institutions, including a family who lost all of their furnishings in a house fire in his community in New York. Such behavior does not exonerate the client, but such altruism is far different from the client who steals money from the bank and then lives a very lavish lifestyle.

   So there's often an assumption of greed, there's assumptions and prejudices about our clients because of how they present themselves. And let's be honest, there's always prejudice and biases based on the skin color of the person, the gender, what kind of clothes they're wearing, their behavior, presentation, and so on and so forth. And even more assumptions about clients who have committed fraud and theft and misrepresentation within financial institutions, particularly with securities fraud. And there's always this assumption of greed. When in fact in this case, the person was not greedy at all. They did it because of misguided decisions. It was clearly wrong to do so, but he took this money and he was actually using it towards rather praiseworthy purposes, including helping individuals in his community.

   The next major factor that I have found special to these cases is that it's important to get at them early, rather than just doing mitigation for sentencing purposes, rather start at a very early stage to get something to the prosecutor to really humanize the case so the prosecutor can understand who the client really is. They say in Chicago, vote early, vote often. I say about mitigation, start mitigation often and really at the pre-plea stage when the client first comes in the door. This is particularly true, of course, in federal cases. Because of the trial penalty, there's an extremely high cost of going to court financially. It's very embarrassing. And of course, there's a high risk in terms of sentencing. Prosecutors, as I see it today as a mitigator and consultant, they just seemed extremely powerful. I think more powerful than when I was in law school 20 years ago, a little more than 20 years ago. And for that reason, pre-plea mitigation considerations for white collar clients seems to me very, very prudent.

   A very good example of this that I'm trying to take case examples wherever I can was a client who was arrested for robberies in Central Park and the police got him. He presented himself as a rapper from the hood, and in fact, he recorded rap music. In fact, he turned out to be a very troubled young man from a suburb, from a Jewish family, really quite upper middle class, and really dusting off the young defendant's veneer of strength revealed someone who had suffered pervasive neglect from his parents and it really allowed the prosecutor to see the client who he was. At first, he looked, as I said, as a rapper presenting himself as someone who came from the hood, which was completely false. This was a veneer that he needed to protect himself, given the psychological trauma he had suffered.

   It was then discovered that he in fact grew up in this upper middle class suburb in Westchester. And even when that was dusted off, we found out that he had parents who really neglected him throughout his developmental years. And as a result, he had to seek and obtain a new identity for himself outside of his own family and outside of his culture. So this was a case where getting that information really on... And presenting it to the prosecutor really showed that this is an individual who really had serious problems with his identity, without any support growing up leading to very poor judgment and decision making, including of course, in the present criminal matter.

   A next thing I really want to notice is that, and this is pervasive in white collar cases, don't assume anything. Don't assume that just because someone grew up in a home with a white picket fence that they necessarily had a positive childhood. Don't assume that anybody coming into court and has a $3,000 Giorgio Armani suit necessarily has success, or they have money in the bank, or they have strong mental health. Just don't assume anything about an individual just because of how they appear. We would never assume anything about an individual because of the color of their skin. So too, we shouldn't assume anything about the person given their socioeconomic background and cultural and educational accomplishments and so on. This is extremely true with these kinds of cases because we're very impressed with these cases. At least I am. I'm always impressed when someone has completed college and they have a stable family and they have a stable job and they have a good income.

   It really reflects something very positive, at least from my culture, and something also very positive about the individual's accomplishments, but we can't assume anything and we have to do a full psychosocial background evaluation on the criminal defendant in these white collar cases to really know who that person is and to understand and consider that they too may have had struggles and traumas like anybody else.

   And I remember this case many years ago from Bergen County in New Jersey where a client came in and it was a mortgage fraud case. And he had a very normal looking family. His wife came in. She was very supportive. They spoke very nicely. They're very educated. Their children were involved in very praiseworthy activities in their high schools and college programs, including music and sports and other endeavors. And I was trying to find out how this normal nice law abiding guy got into so much trouble through mortgage fraud.

   As I start to peel away this onion and do the evaluation, I learned that his father was an extremely controlling and domineering and manipulative individual. He had been working with his father for many, many years in the mortgage business. He obviously grew up with his father and it was in a very traditional home where he deferred to his father in a very docile way. So it's not that this individual didn't have a role in the criminal matter. He did and it needs to be recognized and he has to show contrition for it, but at the same time, we need to contextualize this client's development and parenting and what he experienced as an individual.

   If we had a client that grew up in a lower socioeconomic abusive home where there was physical, emotional, sexual, verbal abuse, and there wasn't enough food to eat, and parents were abandoning the kids, we would throw that in as mitigation right off the top as crucial. Where here too, we should not make assumptions. We should not make assumptions because the client comes in and they're speaking nicely and they're educated. Don't make assumptions as to the client's background, because if you do, you might miss out on crucial mitigation material. And that was certainly true in this case as well.

   Another major issue is that white collar cases tend to stand apart from general criminal defense work. At least that's what I have found. But really, I think many of the strategies that are employed in general mitigation can be borrowed and implemented for white collar case and middle class criminal defendants as well. In particular, as I mentioned before, to start early, to gather information in a very systemic and holistic way, to work with a mitigation early on, use if needed a team approach, bring in family members for supportive and parallel histories, understand the client by creating trust like you would with any other client, quite frankly, not to be intimidated by the client just because they come in and they're very wealthy or have very important connections, but rather to treat the client as you would any other client in the sense that there's certain steps, at least that I take in my work that I take universally, regardless of the issue or regardless of the client and regardless of even how much I any they have.

   I mean, there's certain things that we need to do, certain steps we need to take with cases in general, and so too with white collar cases. We really want to be creative in the white collar cases, have open ended possibilities for mitigation, because that's what we do for every other case and that's what should be done for white collar cases as well. The case example I have here concerned a woman who I've actually used in another CLE, a case who was a woman who was 34 years old working in her father's medical office. She's stealing prescription pads. She's taking these prescription pads that she stole, giving them to her drug addicted boyfriend, and the drug addicted boyfriend is selling them on the streets, using them as analgesics. Analgesics is a general term for painkiller.

   Well, this woman was referred to the criminal defense lawyer who then referred the case to me for mitigation. Her father's a physician, seems like a normal family. The mother is a homemaker, seemed very nice. The client herself seemed pretty stable upon first consideration, a normal middle class family. In fact, this was a family that had survived the Holocaust in Eastern Europe. They came to the United States to start a new life. There was horrific intergenerational trauma. The parents to deal with what they experienced in Europe was very... They were emotionally and verbally abusive to our 34 year old client. The client grew up with extremely low self-esteem, complex trauma, and eating disorder and borderline personality disorder. It was just a perfect example of a family who seemed to be middle class and normal and put together in every way, and you just scratch below the surface and you see serious mental health issues. The reason we found them, as I did as a mitigation evaluator, was because I treated the family and the client as I would treat any other family and client. I did a full psychosocial history and the information emerged. A.

   Nother major issue is what I call the novice criminal. The white collar criminals often have no criminal history or insignificant criminal history and they may be over-trusting. They may think things will just work out. They may be very naive. These are also clients who have never had contact with prosecutors or with police officers or with investigators. These are clients that may also come from money. They may be financially stable. They may come from financially stable families and money has always solved problems. Some kid had a problem in school, you get them an expensive tutor. A kid had a problem with learning, you turn this way.

   In other words, money has solved problems. And sometimes these clients feel, "Look, I'll give money, whatever's required of me to my criminal defense lawyer or the mitigation expert and they'll just somehow work things out." Many of these clients, and we have to be very honest, are arrogant. They can be demanding. They can be unapologetic, quite narcissistic. And if you're a novice criminal defendant and you don't know the system, being arrogant and demanding and unapologetic and narcissistic is not going to help you. You need to be very calm and open. You need to consider what the criminal defense lawyer is telling you. You need to be able to work with the mitigation expert in a constructive way. And if you don't, it's going to be really to your detriment.

   And the case example I have here was a criminal defendant who had never been arrested for anything. And because he'd never been arrested, he was very arrogant. He was consistently uncooperative, believing that things would just somehow work themselves out. And he was really very reluctant to show up for appointments for the mitigation evaluation. He was adamant that he would never set foot in jail because it was below him. He was a very educated man and accomplished professionally. And he said, "Look, I'm paying my lawyer a lot of money. The lawyer's a smart guy. He'll work things out." And of course, that's complete nonsense. The lawyer needs input from the criminal defendant. He needs feedback as to guidance. Just like I do as a mitigation expert when doing the clinical evaluation, it's not guest game. I can't guess about the person's background or mental health or physical health or relationships, community participation. There's nothing to guess at. I need to elicit information over many hours, often over many days, in order to come to a correct understanding about who this person is.

   One of the main reasons that the pre-sentence investigation report by the probation officer is such junk is because they don't have clinical training to elicit this kind of information from the criminal defendant. And so that information is missed. It's not like the probation officer is being purposely neglectful about having this information, as considered within the report, but they just don't have clinical training or clinical skills. But even with that, you need to have a client who has sufficient patience to participate and to work with the defense lawyer and the mitigation expert if they're really going to get a product that helps to advocate for them properly and holistically and completely.

   Generally speaking, white collar valuations, however, do have some differences. Clearly if the individual did not grow up in poverty, in a lower socioeconomic community where there was neglect, then asking about those questions repeatedly is a waste. And it's crucial to start where the client is at as the old social work adage has it. It's important to look at different aspects of the person's life and development and see how it impacted on them.

   For example, the case I had before with the mortgage fraud case, it was really helpful for me to discuss the client's relationship with his father, even though both were educated, both grew up in middle class homes and so on, to understand the nature of the relationship and how his father was manipulative and coercive towards him. At the same time, and I got to repeat this from earlier, we shouldn't make assumptions about an individual who grew up in what we think was a white picket fence home, but then you pick up the home and of course there was abuse. So we need to balance a full regular psychosocial evaluation with consideration for the person's life, this particular client's life, given their own particular history.

   We also want to understand in white collar cases that the fact that someone is driven by greed or that they've committed fraud or embezzlement or whatever does not mean that they're evil. That they have committed a crime like anybody else commits crime and we need to contextualize it. We need to understand precipitating factors and what was going on in the person's life in the weeks and months and years before that led to this poor decision making. And we need to understand that people with white collar criminal crimes have struggles and obstacles like anybody else.

   The case example here is a client I remember very well who really presented with emotional, cognitive and behavioral stability. He came with his wife. She was extremely wonderful. They were talking about their wonderful family and their young children. But when I took a careful history, it showed that he had a history ADHD. The fact that ADHD is rather common in our society doesn't mean that it's not extremely serious. It's a very serious developmental problem that causes all sorts of negative consequences in the person's interpersonal relationship, self-esteem, education, ability to obviously focus, and overall dis decision making.

   And when this was brought out, it really shot a lot of insight for myself as to this person's decision making, how he got into so much trouble. This guy had, again, no criminal history. He had just a wonderful family, a great career, and yet he blew it all under just foolish decision making. And there's no doubt in my mind that the residual aspects of the ADHD from his childhood remained into adulthood, which by the way, is a very important reality that many criminal defense lawyers aren't aware of that childhood mental health problems sometimes do not stop in childhood. There are residual problems or residual features of these childhood issues that continue into adulthood, including learning disorders and dyslexia and ADHD and other problems.

   So for this client, getting at the ADHD, uncovering those aspects that were residual was crucial to understanding the client. The next aspect is that successful people are really good at hiding things. They're good at hiding mental health problems. They're good at hiding drug and alcohol problems. And I want to take a moment to just look at a few cases where I found this to be true and really central to understanding the mitigation factors that I would present for the case, ultimately for the criminal defense lawyer.

   In one case, a very successful client suffered from severe depression and even suicidality contending with his psychiatric issues through long hours of professional career dedication. But just underneath the surface was a very fragile and vulnerable individual. Ultimately his depression manifested itself through self-destructive behavior leading to the criminal arrest. So this was a guy you would never know he was depressed because you think his tiredness is because he's working very long hours.

   He's gaining weight because he doesn't go to the gym. He's not eating properly because he's working very long hours, right? He's not sleeping. His focus is not great and so on and so forth. But really, he's a workaholic. He's a workaholic, just like someone could be addicted to drugs or alcohol as we will see. He's a workaholic and he's covering his depression in that way. His professional success does not in any way prohibit an individual from having serious mental health problems.

   Another example was, I remember this very clearly, a successful client who owned two pharmacies. He allowed his manager to repeatedly falsify prescriptions. The client simply did not have the emotional wherewithal or communication or interpersonal skills to confront his employee. And the reason for that was that this client had Asperger syndrome, what today is called a diagnosis on the autism spectrum disorder. And because of his autism, his ability to communicate to individuals, his ability to confront individuals, even family members and friends, his ability to also understand how other people communicate to him and their body language and so on was a major challenge. And this guy was extremely educated, very successful, a very sweet, wonderful man.

   And even very early when I saw him in my office, I think he was in his late fifties, at first I thought he was depressed. And then I thought, "Well, he didn't really talk... Wanted to talk about the case because he was ashamed about what occurred, because it was a terrible humiliation to his family and the community." But as I spoke to him more and again, you're taking a detailed psychosocial clinical history and this is why it's so important for clinicians to do this and not people without clinical expertise in mental health. I realized that one of the possibilities was that he had something on the autistic spectrum.

   And sure enough, he was later also evaluated independently by the criminal defense lawyer by a neuropsychologist, I think it was, who came up with basically the exact same diagnosis that I did, that this individual fell on the spectrum. So again, a person who was excellent at hiding things because of his professional success.

   Another example in this area is alcohol addiction. I had a client who did not drink with his family, did not drink in the community, did not drink socially, and he was an alcoholic. And he was also successfully noted in the business world for his role in certain electronic companies and so on. So what happened? Simple. This guy had a codependent, unhealthy relationship with his wife and he would drink all night in their bedroom. And in the morning he would get back to his normal life within the family, within the community, within work, and so on. His children, two of whom were adults, so I could speak to them, had no clue that their father was drinking, let alone that he was an alcoholic. So this was one way that he was defending himself against mental health issues and against his obvious alcoholism by drinking quietly with his wife all night in a codependent relationship. And again, that's why it's so important to get parallel histories from spouses and family members.

   A last example I'll give, it was very interesting. This was an executive with his own office. He did not drink at home or even outside of the home, but every time someone would come into his office, he would offer them a drink. In other words, he was drinking socially almost on the hour. In his office, he would have always a nice bottle on his desk with beautiful crystal and an ice tray. This was a guy who was working very successfully. He was very educated and he would hide his alcoholism through social drinking. At one time, it's not very popular anymore, there was something called a four martini lunch, which is where executives and professionals would get together for lunches and these lunches would last two or three hours sometimes. And you would have multiple drinks over the hour or two, and then go back to the office. And clearly many of these people were alcoholics who were using the context of business meetings to drink, but they weren't drinking anywhere else.

   There are a few key things to really think about in mitigation. I have this in other lectures as well, including did this person commit something that was an [inaudible 00:43:40] decision? Was it misguided? Was it just very atypical of this person's usual judgment? Was it an error in judgment? Was it just foolish conduct? Did it happen in an unthinking moment? These are very important considerations for people that don't have a history of criminal behavior. And the reason for that is when a person has a history of criminal behavior, it's almost always because of complex trauma that they've suffered in their childhood or because of psychopathy.

   And very often when we see people arrested in their 20s or 30s or even in their 40s or later, and they don't have a history of criminal conduct, there are almost always major life stressors that have attached themselves to this client in the months and years before regarding family, employment, and so on, that really made them redirect their decision making in a very unhealthy way that got them into the trouble that they're in. And it's very important for this reason to speak to the client about their work and try to understand what's been going on with the client, not only in their childhood and adolescence and early adulthood, but really in the last few weeks, few months, even year or two before this. And very often there are, as I said, major life stressors that really do inform diminished capacity. Criminal defense lawyers usually think of diminished capacity in terms of psychosis with major mental health problems, such as bipolar disorder and schizophrenia, and so on. Psychosis means the person's out of touch with reality due to hallucinations and delusions.

   But diminished capacity in the mental health world and for mitigation purposes is really much more broad. A person can have diminished capacity due to overwhelming stress. This is something, by the way, I see a lot with complex trauma with criminal defendants who grew up in homes where there's physical, emotional, psychological abuse over many years. The individual grows up with huge amounts of stress so that they end up with emotional dysregulation, cognitive dysregulation, and their decision making and judgment is really pathological.

   So too, in some respects, we have to look at clients in this regard and find out what's been going on with them cumulatively in the last couple of months or years. One case I remember was a middle management client who stole from his company. He did so foolishly and impulsively and really without animus, but he did it believing that doing so would address his gripes with others in management, due to his feeling that his work went unrecognized. So this is not a career criminal. He felt terrible guilt about what he was doing. He was very clear about his contrition later, but he felt a terrible sense of frustration. He's in this middle management position. He's not moving up. He has stressors because of financial issues with his family.

   Again, these are not excuses, but this is a way to understand the person's decision making, how they got into so much trouble. If in fact, in the years before they lived a perfectly normal life. So the key strategies sometimes in traditional mitigation may not be quite the same in the white collar cases to the extent that I've noted here.

   Another major issue is that some of these cases I find, especially with securities fraud, are very complex. I went to law school, admittedly, it was two decades ago, but sometimes I find it very difficult to understand the fraud. I've had a couple mortgage fraud cases referred to me. I didn't quite understand the fraud. I had to go over it once or twice with a lawyer myself to understand exactly what the issue was and what the client did, and as a consequence, what the potential penalty could be. But I do see clients that they're not lawyers and there are overly complicated statutes and the statutes may be valid. They may be there for a reason, but they're complicated.

   And sometimes the client doesn't understand them and they really need to be explained in detail for mitigation to go forward properly. I've also seen cases where clients who do something that is clearly illegal, but all of their friends and colleagues within that business world or the financial world also do that illegal thing. And so, because it's normative among peers, they can't possibly see how they would've gotten caught or why it's really wrong. And also sometimes I see cases where there's a complex set of facts and even the prosecutor may miss out on nuances that really help to explain the underlying issues.

   I remember one case, this was a white collar defendant who was indicted for securities fraud that he initiated the mitigation through the support of his wife, but the client was a retired lawyer. Okay? And his wife's background was in fashion and it meant that really neither of them could really fathom the reason for the arrest, even though they wanted a good criminal defense lawyer and they wanted mitigation. And the client's wife convinced her husband that his actions were not illegal, although this obviously contradicted what the criminal defense lawyer said. And this really sabotaged the mitigation process to the extent that the couple wasted their time when they came to my office and they insisted that they were railroaded and misunderstood. And when this happens, I refer the client back to the criminal defense lawyer and I'll say, "Look, the clients, they just don't get why they've been arrested. They don't really understand the statute. Maybe you can explain it to them again so that when I work with them doing the psychosocial evaluation for mitigation purposes, we can work constructively."

   There are also clients clearly who do understand why they've been arrested, even if it's complex, but they're just in denial or they're just so arrogant that they just don't want to deal with the reality of the situation, even though the consequences may be very, very serious. And as a result of that, again, it may be very difficult at that point to really effectively deal with the underlying issues and help the client elicit information during the evaluation that will help me as a mitigator to really advocate for the client properly and holistically.

   The last major issue I really want to look at are character types. The reason I want to talk about this is because many of the clients who I see for white collar criminal defense cases and middle class clients, and especially as I said, those clients who don't have a career history of committing crimes, often do have something else and that is they have character pathology. That is, they have a pervasive pattern of interpersonal problems dealing with family and community in the area of employment, education, and so on.

   It affects the individual's ability to think through problems that it affects their cognition. It affects their ability to process information. It affects their mood, their affect, and it could be very detrimental because as I said, many of these clients may think of themselves as very healthy, but they may have concomitant problems, including drug and alcohol problems or undiagnosed depression. But again, they may have simple character issues, what used to be called access to psychopathology. That is personality disorders that really inform who they are in their decision making and how they get along with other people and so on.

   And in the few minutes we have left, I just want to mention a few of these as I think they can be very helpful. And they can be very helpful because some of these clients are also extremely demanding, not just difficult, but they can be demanding towards the criminal defense lawyer and they can sometimes even sabotage their own case.

   The first type are dependent types. These are individuals, and this is a very broad characterization, but it's important to understand these are individuals that really have difficulty making everyday decisions on their own. They need others to assume responsibility for them. They have difficulty expressing disagreement. They feel uncomfortable or helpless when they're alone. And one of the major consequences of this is that such clients may really unconsciously try to turn to the lawyer and turn to the lawyer into a kind of parent role, bringing to the office insatiable needs for affection and attention, and then becoming sulky and hostile when the needs are not met.

   Sometimes we see criminal defense clients who are really quite independent and that's how they got there, independent with regard to decision making and their type A personalities, but not always. Some of these clients got to where they are because they're quite intelligent. They did very well in school. In other words, they had academic acumen and that got them from point A, to point B, to point C. But when they get into the professional world, sometimes they can be quite docile or dependent on others, dependent on coworkers, but also dependent on supervisors and so on. And when that happens, they can become very frustrated when things don't work out, they can become very anxious when they don't get the proper support in the workplace. And there's of course a parallel, as I noted, to the criminal defense lawyer.

   The client then comes to the lawyer and the client becomes very dependent on the lawyer for help and support and care, and even love sometimes feeling that they're just without the kind of understanding about how they got into so much trouble. And these individuals are really so dependent that they may undermine their own cases because of their own neediness.

   Another kind of client, and we have a completely separate CLE on this, but it's absolutely worth mentioning in the context of white collar criminal defendants, is borderline personality disorder. And these are clients who have a chronic sense of dissatisfaction with themselves and others. They feel extremely empty inside. These are clients who feel unheard of... They feel not only unheard personally, but they feel ignored and misunderstood in the context of personal relationships and professional relationships. They're chronically dissatisfied. They may make terribly unhelpful suggestions and call every day, drive the lawyer crazy. They really blur boundaries. Sometimes they find it really hard to understand where they start and stop and another person starts and stops. So they're emotions and feelings and another person's emotions and feelings really become very blurred.

   They can become deeply jealous and angry and even rageful. They see the world in terms of being all dark and all white and all good and all bad. They'll go to their lawyer one week, they get great legal advice, direction, a counsel that helps put their mind at ease. They go home, they feel great for two weeks and they come back at the next appointment and the lawyer is no longer seen as this wonderful counsel, but rather demonized.

   Why? Well, something went wrong with the client in their own personal life and now they're terribly angry and upset, and you've gone from being a hero to a zero. These clients are easily overwhelmed. They project out their feelings because they're too intimidated by their own mental health issues to deal with them in an honest way. They can be quite impulsive and they may be even sexually inappropriate with the lawyer. And these clients could be very self-destructive and they sabotage their own case. Many of these clients are the ones that end up reporting professionals, such as doctors or lawyers or whoever, to professional boards with complaints.

   Some of these clients also can be extremely controlling. This is another character type. They are preoccupied with details and rules. They demonstrate perfectionism. They're unable to separate what's valuable from what's unvaluable. They could be very miserly in some ways. They could be very rigid and stubborn. And they can be extremely obsessional. In other words, they may get an idea into their head about how the case should be pursued and they drive the lawyer crazy. They present it once or twice to the lawyer, the lawyer says, "Well, it might be a good idea, but I suggest we go in this other direction," or the lawyer might say, "Yeah, that might be a good idea. Let's keep that on a back burner and perhaps we can revisit it it in a week or two or three when we get feedback from the prosecutor's office." But such clients really may prevent the lawyer from moving forward in a constructive way because they get so bogged down in these details and they become so controlling.

   Another major overall type is clearly the narcissistic character and these are persons that are really very grandiose. They need attention and admiration. They have a strong sense of entitlement. They can be quite interpersonally exploitative. They really can't properly identify or appreciate the feelings of others. They can become very envious and it can lead to really extreme forms of narcissism, something called malignant narcissism and such clients may react with fury to legal setbacks in their case. And they may routinely threaten to sue, even when they're short delays. The wheels of justice moves slowly, as we know. And even if the lawyer gives the client a good sense of how long the case will take and the steps needed. The client, because they're so deeply self-centered and they can't move beyond their own needs, they become extremely frustrated and rageful when their needs cannot be understood or met, given their own idiosyncratic self-centered world that they live in.

   When the lawyer feels unease, nervousness, anxiety, fear, frustration, or anger without an apparent source, it's likely that the client himself has behaved or said something that has caused the lawyer's natural self-protective defenses to go up. We all have these triggers and they serve as an early warning system that the person we are dealing with is dangerous or a potential threat, or somehow unbalanced. Again, we normally think that with career criminals, some of that has a long history of burglary and violence and drugs and so on, that this is a person we should really be careful of when we're dealing with and explain things carefully and so on. We don't think about this with white criminal defendants necessarily because they don't have a history of these things, but they may indeed have a history of character pathology, as I've noted here, which really needs to be considered.

   This matter can really harm the client. The client may demand unrealistic results. The client may erroneously believe that he's entitled to a better outcome because he has money and because of his education, his special status in some form or another within his area of expertise. Client may feel that because he's paying such a substantial fee to the lawyer or mitigation expert that magically somehow things will come out positively and the case will be resolved and he doesn't really have to participate, as I noted before.

   And again, the client may just be extremely naive about the criminal justice system and they've lived in a very protective cocoon, quite frankly. And when the realities of the criminal justice system become clear to the client, and there are many ugly points to the criminal justice system, unfortunately, then obviously a client can become very shocked and retributive.

   The client can protect himself [inaudible 00:59:53] by clarity of purpose at the outset, consistency of counsel, appropriate boundaries, addressing conflict or ambiguity when it comes up, getting second opinions, if necessary, consider unfinished business at an early point and not the day that you're saying goodbye to the client, carefully document all interaction with the client, and just be aware as a professional, as a criminal defense lawyer, just as I'm always aware of a client's behavior and moods, and so on.

   I have to tell you, I had a client about three weeks ago, and she started the conversation in an extremely abusive manner, threatening and so on. This was a woman who had just suffered terrible abuse in the context of a relationship and I was really extremely concerned for myself. I was extremely concerned professionally, but I was also extremely concerned for the client. But the truth is, I was able over the course of just 10 or 15 minutes, to explain to her the parameters of our work, how I would be helping her. I was asking her about her fears and reflecting to her what her concerns might be. And the amazing thing was I was able to work with her within 15, 20, 25 minutes. And really, I think save what could have otherwise been a very contentious and harmful relationship.

   The last thing I just want to note is that there's some clients who really benefit from mitigation. We normally think that all clients that have suffered serious mental health and complex trauma and depravity and deficits in development can really benefit from mitigation, but also just to reiterate, a lot of these clients that seem to have come from middle class backgrounds really do have undiagnosed psychiatric problems. Many of these clients are deeply ashamed of being arrested because they don't have any criminal history and it's anathema to their cultural background and they may be terribly stigmatized. Many of these clients do have immediate family members who would suffer are extreme hardships because they were dependents. Many of these clients, as I mentioned before, really do have childhood traumas and abuses that need to be considered. Many of the clients, even though they have significant professional accomplishments, they may have poor language skills or communication skills. They may have difficulty with executive functioning and so on. They may have difficulty with authority.

   And so we really need to be very patient in understanding what the white collar defendants and middle class defendants in general, as we are understanding about anybody that's come from any kind of traumatic or challenging background or childhood, so that these clients that we're dealing with are able to benefit from criminal mitigation in the same way that all other clients are able to benefit from criminal mitigation.

   Thank you for listening today. I hope this has been helpful and please don't hesitate to email me and I will send back a redacted sample of the criminal mitigation report for white collar defendants.

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1h 3m 08s

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