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Mitigation

What is Mitigation?

The State bases its decision to charge a person with a crime based on evidence gathered by law enforcement. While the State can take statements from the suspect themselves, a great deal of evidence will be based on observation from officers, witnesses, recording devices, and alleged victims. This evidence is geared toward proving a crime has taken place at a particular instance and by a particular person. If the State has gathered enough evidence to establish probable cause that an individual has committed a crime, they will make an arrest and press charges. What is not included in the evidence gathered and presented to a district attorney, is evidence to support innocence or, even more unlikely, evidence to show that the suspect had a legitimate, reasonable motive for doing what they did. This evidence is loosely termed ‘mitigation.’

When a client retains Burnham Law to represent them in their criminal matter, our first job is to gather mitigating evidence to present to the prosecutor. Mitigation will tell the prosecutor the story they’re not hearing from law enforcement reports or witness statements. It may be as straightforward as pointing out a deficiency in the arrest procedure that resulted in a violation of the client’s rights; for example, the client was not properly Mirandized or there was an illegal search and seizure of evidence. Oftentimes, it’s much more complicated. 

Mitigation tells our client’s story to district attorneys and makes the case for reducing a charge for lack of supporting evidence. It can sweeten a plea to get our client a better offer or even secure a dismissal of charges altogether. Preparing a mitigation packet involves careful review of the State’s evidence (discovery), interviewing the client to get a full picture of who they are, and rethinking every part of the alleged crime as it’s understood by the DA. If the State’s evidence is unsupported or ambiguous, we emphasize to the prosecutor how we would exploit this weakness in front of a jury. If we investigate a State’s witness and find they have, for instance, a criminal history rife with theft or fraud, we expose this to undermine the DA’s confidence in their case. 

Much of the State’s evidence is based on law enforcement officers’ first impressions and fleeting interpretations of a scene, or witness statements given in tense or heightened emotional states. This type of evidence is subjective and overwhelmingly geared to a certain conclusion: it primes the mind to suspect criminal activity. In this frame of mind, even direct evidence, like video or audio recordings, can be misinterpreted. It’s not that the reports from law enforcement are false or witnesses aren’t credible, it’s that the story being told is simply incomplete. Our job is to flesh out those reports with all the evidence, all the details, and the complete story of our client in a way that persuades the prosecuting attorney to rethink the strength of their case. 

What is the Client’s Role in Preparing a Mitigation Packet?

We begin by asking our client to tell us about the incident leading to their arrest. What was going through your mind? What were your impressions of the situation, and the other parties on the scene? So often, the first thing someone says when they’re arrested is, “Why am I being arrested?” Even after clients retain us, they express confusion about the charges they face or why, given the incident as they remember it, they were arrested. We ask about every aspect of the incident; What did you see? Where were you, where was everybody else? What did the officers say? What did you say? We ask clients to review the State’s evidence against them. Does the State misinterpret any aspect of the incident? What have they left out?

We want to provide a picture of our client to the prosecutor so they will understand our client’s behavior as a reasonable reaction to a situation as our client understood it. A simple example is, Person A strikes Person B. Person B provides the bulk of information found in the police report. Person A is arrested and charged with misdemeanor assault and does not provide a statement to police officers. This is the version, including damning photos of bruising and silent surveillance video of the assault, that is presented to a district attorney to support a criminal charge. When Person A retains us, we get the full history. Perhaps Person B has a history of antagonizing or abusing Person A and Person A experienced reasonable fear when Person B approached them. Now, when we review the surveillance video with a better understanding of Person A and Person B, we notice the menacing way Person B approached. This illustrates the new way a crime’s story is understood when clients get the chance to share the whole story. 

How Do Mitigation Packets Work to Secure the Best Possible Outcome for Our Clients?

Burnham Law’s criminal defense attorneys have extensive experience as prosecutors themselves so they understand the incredible amount of work that district attorneys must do and how little time they have to get in the weeds of every criminal charge and every defendant’s case. Our mitigation packets are aimed at providing district attorneys with a comprehensive understanding of a case, presenting our client in the best possible light. If there is a way to interpret ambiguous or incomplete evidence that supports reducing or dismissing a charge, we drive that home. A prosecutor’s job is to prove guilt, not innocence. However, prosecutors are not machines, closeminded and singularly determined to steamroll defendants. When we provide a well-reasoned and factually supported case of mitigating evidence, prosecutors often give our clients the benefit of reconsideration. We have an excellent track record of providing prosecutors with enough evidence to support reducing a charge, a lenient plea or even outright dismissal of a criminal case.

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Jessica
Lasky

Partner - Criminal Defense

Colorado Springs

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