Mitigation at SentencingSort of

Not Mitigating

Also not mitigating

Mitigation Appears Worthless

Sometimes Your Audience is Worthless

Please Tell Me More About When You Were a Prosecutor

Steve Mandracchia, PhD

• The 1st rule of working on a case: Do no harm

Janis Joplin – Me & Bobby McGee

• “Freedom’s just another word for nothin’ left to lose”

SENTENCING THEORY

• Summarizes the factual, emotional and legal reasons why the court should impose the sentence you want

• Tells your client’s story of mitigation, rehabilitation, or reduced culpability, and it resolves problems and questions the judge may have about imposing the sentence you want

Start Early

• Not to be pessimistic, but. . . .• Detention Hearings

What to Know

• Know Your Audience• Know the Law• Know the Statistics• Know Your Case• Know the Experts• Know Methods of Presentation• Case Studies

Know Your Audience

• Judge• Prosecutor

Judge

• Personality• Persuasive

• Guidelines & Statistics• 18 U.S.C. 3553(a)• Straight Mitigation

Prosecutor

• Mandatory Minimums• Personality/Persuasive

• Ask them what they want to know/hear• Let them talk to people directly

• Judge

Know the Law (a little)

• 18 U.S.C. 3553(a)• 18 U.S.C. 3553(e) / 5k• Safety Valve 3553(f)

Know the Statistics

• Sentencing Commission Website • www.ussc.gov

• FD.org• DOJ Research• Other Research

Ussc.gov

10th Circ.

F.W.

Know Your Case

• Client Interview• Family/Friends Interview• Supporting Information• PSR

Know Your Case (Client Interview)

• Medical • Mental Health• Substance Abuse• Education• Family• Employment• Good Works• Goals

Know the Experts

• Mental Health• Substance Abuse• Sex Offender• Others

Experts (Mental Health)

• Diagnosis (PhD vs. MD vs. Neuro)• Mitigation (effect on culpability, etc.)• Treatment Provider• Prognosis• Risk to Reoffend

Expert (Substance Abuse)

• Toxicologist• MD• Psych• Treatment Provider

Experts (Sex Offender)

• Actuarials/Risk to Reoffend• Diagnosis/lack there of• Treatment Options

Experts (others)

• Crime Scene / Forensic• Actuarial • Residential Facility• Social Worker• Teacher• Medical Examiner

Know Methods of Presentation

• Live Witnesses• Video• Photos• Letters/Reports• Sentencing Memorandum

Live Witnesses

• Client• Public speaking• Cross examination• Know his/her stuff

• Expert• Answer Judge’s Questions• Prosecutor Cross• Fill in for Client

• Others• The good, the bad, the ugly

Videos

• Primacy• Editing of Lay Witnesses• Integrated Presentation• Break up Individual Witnesses

Photos

• Not “Made for Court”• Presented by Live Witness

Photo Book (C.E.)

Photo Book (C.E.)

Letters/Reports

• No Cross• Primacy

Sentencing Memorandum

• Primacy• The Law• Statistics• Prime the Court for Sentencing Hearing

SENTENCING MEMORANDUM INCLUDE EXPERT STUDIES AND REPORTS

SENTENCING MEMORANDUM INCLUDE GRAPHS AND CHARTS

M.M.

• Release at Detention Hearing• No Experts• Mandatory Minimum (ACCA)• Notebook (Good Works)

D.S.

• Release at Detention Hearing (Gov. Appeal)• Expert – declined to disclose• Prosecutor & Judge• Community Service / Work (video)

D.H.

• Release at Detention (CP)• Mandatory Minimum (Prosecutor & Judge)• Psychologist (Prosecutor Meeting / Testimony at Sentencing)• Treatment Provider• Residential Facility• Experts Speak FOR Client

J.B.

• Release at Detention• Mandatory Min (Prosecutor – not Judge)• Experts (Psychologist / Treatment Provider)• Client involved in meeting w/ Prosecutor & Agent• Janis Joplin meets Steve Mandracchia

L.T.

• Release at Detention Hearing• Experts (Psychologist & Treatment Provider)• Mandatory Minimum (Prosecutor)• Meeting w/ Experts

K.R.

• In Custody• No Mandatory Minimum (Judge)• Actuary

R.M.

• Release (SORNA)• Prosecutor (Diversion)• Proof of Google Search

D.B.

• In Custody• Mandatory Minimum? (Judge)• Expert (Psychiatrist – Drug Trmt Provider)• Sentencing Memorandum

• G.L. issues• Preview of expert

D.B.

D.B.

F.W.

• No Mandatory Minimum (Judge)• Expert (Family Members / Testify)• Sentencing Memorandum

• Sentencing Statistics• Preview Expert

Other Examples?