Plea Bargaining And Sentencing Negotiations
Plea bargaining, sentencing negotiations, and sentencing are all unique and nuanced in sex crime cases. More than in any other type of offense, prosecutors simply do not plea bargain or sentence bargain in sexual assault cases from a point of weakness. The only way to get a prosecutor to come to the table with a fair plea offer or sentence agreement is from a position of strength. Not every case can be taken to trial, and taking a case that is a dead loser to trial is a mistake – unless the prosecutor just does not give you an alternative. That can happen in sex crimes cases, where the prosecutor’s offer can frequently be: plead guilty as charged, and hopefully the judge will go easier on them if there is no trial. In some ways, that makes the decision easy: it is the exceedingly rare case that should be plead guilty as charged, without any concession on the charges or sentence.
The way to get the prosecutor to give you an alternative is to do all the prep work so that you can gain that position of strength. You can use the preliminary examination as the lead to say something like, “Okay, Mr. or Ms. Prosecutor, here’s why your case isn’t nearly as good as you think it is.” You aggressively cross examine the complainant at the exam, and make it clear to the prosecutor why he/she should be offering a deal.
From the very beginning, you are preparing the mitigation in case your case loses. Whether it is by pleading guilty or losing at trial, cases are lost, defendants are convicted, and sentencing happens. But that does not mean that the case is over, or the fight is done. Sentencing is not a time to throw your hands in the air, or give up. There is mitigation to be done, and it is a ton of work.
The first mitigation step in a sex crime case is to send the person to a forensic psychologist to get a forensic sex offender risk assessment. Is this person a dangerous pedophile? Does this person have the psychological presentation of a sex offender or a pedophile? Or do they have a presentation of somebody who can be safely supervised in a community setting? Are they a good candidate for probation? Do they have to be put in prison, or can they be safely treated?
After you get that forensic sex offender risk assessment, you need to listen to what the psychologist recommends. Let us say the person has autism. (We are seeing more and more people with autism spectrum disorder involved in sex offenses, particularly child pornography and internet solicitation cases). In even the client has ASD, you need to get a psychologist who specializes in autism to do a second evaluation after the first sex offender risk assessment was done. Do we need an MD to evaluate the person because there is something physiological or neurological with the brain going on? Do they need a psychiatrist? Are they bipolar? Are they manic depressive?
Whatever the experts say, we need to listen. If the assessment recommends Sexaholics Anonymous (SAA), then they need to get into SAA. If they recommend outpatient therapy, then they need to get into outpatient therapy. If they need to stop drinking, then the client has to stop drinking and maybe enroll in AA.
Track Record Of The Client
The next mitigation step involves compiling a track record of why this person should not be locked up. If they have a good job, isn’t society better off with the person out working than in prison? Do we really want another drain on our society, by paying $50,000 a year to lock that person up in prison if they are not dangerous? If they can be safely treated, would not therapy be better?
Once you have compiled your track record, it is time to actually sit down with the prosecutor and negotiate a plea from a position of strength. Your pitch could be, “Look, this guy’s already been in SAA or outpatient therapy for six months. The therapy’s working; look at this update from the therapist. They have 100 sign-ins at SAA over the last six months. That is like three or four a week. Look at this support letter from their sponsor. What can we do with this case, this guy deserves a break.”
Another potential mitigation step, one that is optional but can be extremely effective, is the use of a mitigation specialist. These specialists are former members of the Michigan Department of Corrections who used to be on the parole board, and/or Masters in Social Work that focus on issues related to probation, parole, supervision, and services. This specialist can write the equivalent of a defense pre-sentence report. They can talk about all the reasons why the person does not need to go to prison, why it is more effective to treat them in the community with intensive probation. It helps when we can tell the judge that the recommendation for this person to be safely treated and supervised in the community is coming from former parole officers of the Michigan Department of Corrections, as opposed to the accused wife or mother.
Letters Of Support From The Community
The final piece of mitigation is support letters. When you get letters of support from the community, it is important to remember a couple of things. The first thing—as I like to remind clients—is that we all have a mom who would say nice things about us. That is not to say that getting a letter from your mom is not valuable, but the really effective support letters come from people who do not have to say something positive about us. Through these letters, we are trying to humanize the client. We are trying to paint the client in a way that moves the judge toward seeing them as a human being. Letters from people of standing in the community like business leaders, politicians, police officers, or religious leaders are highly effective. Lawyers and even judges are surprisingly happy to write letters for people whom they know well, and that do believe in. It looks good if your client is divorced but his former mother-in-law still wants to talk about what a great father he is. And often the best support letters come from the person’s employer or boss if that boss can tell you what a great and reliable employee the client is.
A second thing to remember—and this is extremely important—is that letters that say this person would never do something “like this [meaning sexually assault his niece]” are extremely ineffective, especially if the client is going into the courtroom to plead guilty and tell the judge that they did do something like this. Those letters can, in fact, be counterproductive, which is why I will not use letters that say that.
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Instead, we are looking for letters that say something like, “I know that he pled guilty to criminal sexual conduct in the second degree for molesting his niece. But let me tell you, there is another side to him. Let me tell you about the guy that I know.” These letters acknowledge the charge. Despite the client pleading guilty, the letter-writer still has a positive opinion of them.
If a case is not really triable, or if the accused is convicted at trial, all of these mitigation techniques should be explored and employed to soften the damage and shorten the ultimate sentence – either with the prosecutor in plea negotiations, or the judge at sentencing.
Know Your Prosecutor
You have to know your prosecutor and whether or not your prosecutor would be willing to actually listen and give that mitigation information its proper worth and value. The sex offender risk assessment is going to talk about your client’s propensity for doing something illegal. Can you trust to send that to the prosecutor and have them use it for its intended purpose? Similarly, the mitigating report from the former MDRC parole board member is going to have admissions and things in it that you have to trust your prosecutor with. Support letters, the SAA sign-in sheets, and the update from the therapist that is treating the client for whatever mental health issues they have are all going to contain helpful (for mitigation purposes) but also potentially hurtful information (if the case were to go to trial).
You have to really weigh whether the plea-bargaining process is the right time to share that information. In some cases, you might be better off holding it until after the plea in preparation of sentencing and then giving it to the judge and the prosecutor at the same time. This must be decided on a case-by-case basis. The most important factor that will go into your decision is whether the case is at all triable – if you are backed into a corner, is trial even a remote option? If the case is a dead loser, you probably do not have a real downside to sharing that information with the prosecutor before the client pleads guilty. But again, you have got to be okay with sharing that information with the prosecutor before your client pleads guilty, and you have to trust your prosecutors to be the kind of person who is going to take that information and use it the way you need.
Most of the time, the client will be forced to take a plea that is going to put them on the sex offender registry. Showing the judge and the prosecutor what kind of impact that has on this particular client is an additional especially important consideration.
Day In The Life Video
There is one final option when it comes to plea and sentencing mitigation – that is expensive, but extremely effective. A good way to look at it is as a home run; nuclear option as sentencing mitigation goes. That is the use of a day in the life video for the client at sentencing.
Plaintiff’s lawyers use day in the life videos all the time, and have used them for years. However, I am the only lawyer in Michigan, as far as I know, who has ever done used a day in the life video at sentencing. The response has been universally, and overwhelmingly, positive from judges. Judges (and even prosecutors) have all told me they have never seen it done before, but they were impressed with its effectiveness.
As just one example, I had a person charged in an internet solicitation/child sexual assault case, who had an extremely favorable sex offender risk assessment report. He had been abused as a child himself, and had become very overweight in high school. As a result, girls did not take him seriously, and he did not have a lot of dating or sexual experience. His sexual development was stunted when he was an early teen. In other words, he had the sexual maturity of a 15-year-old, which is why he was attracted to 15-year-olds instead of adults. The video told this story, and included pictures of the client when he was in his teens and at his heaviest. He had nerdy high school loser written all over him, which made a compelling and heartbreaking story.
Then, the video showed the changes in his life when he found his fiancé, a woman who loved him for who he was. She was into health and exercise and nutrition. Through his relationship with this woman, he really turned his life around and lost over 100 pounds by eating well and exercising. He was seeing a therapist long before he was ever charged with a crime. The therapist talked on the video about how much he had grown, and how he was not the person he was when he first got out of college and committed these offenses. He was quite literally a different person. You could see it in the video. Showing the people who had supported him through this metamorphosis in his life was really effective.
Putting together a Day in the Life video with a videographer is expensive (starting at around $10,000). Again, these videos are not for every case. But in the right case, when we have used a video, the visual effect is immensely powerful. There is a reason why people like going to movies today better than reading books.
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