Developing Sentencing Mitigation

Evidence

Zay ThompsonFederal Public Defender Investigator

Goals of Mitigation

Learn and Explain:• Who the client is as a person rather than a case number• What occurred in the client’s life leading up to being charged with the

crime• How the client functions in his world and his ability to change• The impact of the case on the client & her family’s life• Client’s plan for redemption

Investigator’s Role In Mitigation

Develop information and evidence through:• Interviews with the client & those who know the client best.• Gather records• Create mitigation tools• Gather personal items & mementos• Support preparations for a presentation to the court (and prosecutor)

Client Interview

Goals• Humanize client

-Starts with humanizing him/her to yourself. • Build trust & rapport

-Enables the client to talk about painful things.-Enables you to empathize with & explore your client’s life story

• Learn about key points in client’s life, especially decision points. • Learn about key people in client’s life, especially those we should contact.• Develop leads & themes • Identify records sources and get releases.

Client Interview Challenges

• May have to do several interviews • Covering someone’s lifetime• Building trust & rapport

• Help your client come back from a place of vulnerability

Interviewing Family & Friends

• Explain purpose• Everyone remembers something different and has different perspective which

is a piece of the puzzle. • Develop leads & themes• Help understand why siblings didn’t get in trouble • Gain insight into pre-natal factors • Sources of mementos & records• Assess how they can best contribute

• Witnesses, characters in a video, letter writers, be part of the redemption plan.

Interviewing Family & Friends:Challenges

• Interviewing groups• Getting specifics & useful anecdotes • Building trust and getting people to warm up.• Avoiding minimization of client’s criminal activities or trauma

Interviewing Other Key People

• Friends & romantic partners• Co-workers & employers• Social service providers• Medical providers• Teachers & school staff• Clergy

• Often the best spokespeople • Usually key to the redemption plan

Interview: Social History

Areas to Explore• Childhood• Poverty & finances• Relationships: family, peers, neighbors, teachers, romantic partners,

co-workers• Education• Employment• Social services• Mental health

Interview: Social History

• Physical health• Head injuries• Addiction• Criminal history• Religion• Hobbies, recreation, & skills

Hone in on life immediately before, during, and after alleged crime

Interview:Themes to Explore

• Trauma• Event was unexpected and the person was unprepared & helpless. • If the client was disassociated or emotionless when committing the crime, it can be a

sign of childhood trauma.• Influences • Turning points/failure points• Pressure points• Past attempts at success/missed opportunities• Strengths, weaknesses, opportunities (including opportunities to create

mitigation through contact with children, or self-work)• Client’s world view

Interview:Themes to Explore

• Impact of the case on client’s life and loved ones’ lives• Incentives for success and avoiding re-offending• Elements of support needed for success• Evidence of survival and resilience

Interview:O.A.R.S.

• Developed by Jim Tibensky, Mitigation Specialist for the Chicago FPD• Open ended questions:

• Examples: “What was it like?” “Tell me about it” • Exception: interviewing the severely mentally ill & getting data like addresses

• Affirm: • Example: “Must have been hard. I appreciate you being willing to tell me about that.”

• Reflect: • Example: “You’re saying you didn’t get anything to eat all day? You must have been

very worried.” • Summarize:

• Example: “Here’s what I’ve learned that will be really helpful for us.” [Then go on to the next subject] Last question: “Is there something I haven’t asked you about that I should?”

Interview:Identify records

• To support (or rebut) client’s story and mitigation narrative• To create a firm timeline with specific dates• To refresh client & witness’ memories• To use as impactful exhibits• To analyze for more leads & themes

Gathering Records:

• Following up with records clerks• Spreadsheet to track records request and analysis

Gathering Records:

Create Mitigation Tools

• Organize and analyze the collected information• Help reveal themes and leads• Track investigative progress• Can be used in the court presentation

Create Mitigation Tools:Witness List

Design Credit: Mitigation Specialist Kate Siska, CLS Mitigation & Consulting Services

Create Mitigation Tools:Witness List

Create Mitigation Tools:Witness List

Create Mitigation Tools:Chronology

Design Credit: Mitigation Specialist Kate Siska, CLS Mitigation & Consulting Services

Create Mitigation Tools:Genogram

Gather Personal Mementos

• Family & friends are great sources of these• Impactful in court presentation• Examples:

• Family photos, • Certificates of achievement • Art • Writing

Presentation to Court

• Character letters • Testimony• Sentencing memo• Sentencing video

Presentation to Court:Character Letters

• Explain role, format, deadline, and process• Format:

• Intro• Good things about the client• Explanation about client’s life • Impact of the case on client and loved ones• Changes in client since getting into trouble• Support offered• Plea for mercy.

Presentation to Court:Character Letters

Presentation to Court:Character Letters

Presentation to Court:Character Letters

• Follow up & assistance• Have to stay on them about this• Sometimes need to help them write the letters or suggest edits. • Drive for specifics and anecdotes.

Presentation to Court:Sentencing Videos

• Assess whether to devote the resources. • Can be helpful if the subjects live far away but also a larger gamble

• Find good characters & narrators• Client, Loved ones, Key people, You• May have to wing it and see what develops as you film interviews• Work with what you get • People surprise you at how they rise to the occasion though

QUESTIONS?