Handbook of Mitigation In Criminal and Immigration Forensics: 5th Edition

By Mark S. Silver

This book is an essential companion to any criminal or immigration lawyer who wishes to better advocate for his client by humanizing the individual and presenting important psychosocial details from the client’s life, which will also impact on the factual analysis of the case. (Revised 5th Edition)

Both experienced and novice lawyers will glean important insights into criterion to consider for pre-sentence memorandum of law, all immigration cases, mitigation factors, challenges posed by difficult clients, heuristics and biases in the judicial system, the benefits of mitigation consultation, factual analysis, and related matters in the advocacy process.

Ultimately, this book will fill in the gaps left out in law school, such that the lawyer will more accurately understand his client’s needs, and the lawyer will be equipped with the tools to proceed in a professional manner.

• Language: English
• Publisher: Lulu.com
• Release date: Sep 28, 2011
• ISBN: 9781329701977

Book preview

Handbook of Mitigation In Criminal and Immigration Forensics: 5th Edition

Handbook Of Mitigation In Criminal and Immigration Forensics: Humanizing The Client Towards A Better Legal Outcome, 5TH Edition

MARK S. SILVER

M.A., L.C.S.W., PsyD., J.D.

Copyright © 2015 Mark S. Silver

All rights reserved.

No part of this book may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means electronic, mechanical, photocopying, microfilming, recording, or otherwise without written permission from the author.

5th Revised Edition. November 2015

Print ISBN 978-0-557-28495-5

Ebook ISBN (LULU.COM) 978-1-329-70197-7

BISAC LAW067000

1. LAW / Mental Health

Published by Mark S. Silver

257 West 117th St, Suite 6C

NY, NY 10026

United States of America

For further information, visit www.CriminalMitigation.com

Or contact Mark Silver at:

[e-mail]

And as usual I feel that if I sink further I shall reach the truth. That is the only mitigation; a kind of nobility.

—Virginia Woolf

Justice Justice You Shall Pursue.

—Deuteronomy 16:20

St. Thomas More: And go he should if he were the devil himself until he broke the law

Will Roper: So now you would give the devil benefit of law!

St. Thomas: Yes, what would you do? Cut a great road through the law to get after the devil?

Roper: Yes! I'd cut down every law in England to do that!

St. Thomas: Oh, and when the last law was down and the devil turned 'round on you, where would you hide, Roper, the laws all being flat. This country is planted thick with laws from coast to coast -- man's laws, not God's--and if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I would give the devil benefit of law, for my own safety's sake.

-A Man For All Seasons

Robert Bolt

Note to the Reader

The terms mitigation report and psychosocial report are used interchangeably in the book. While the two terms are not the same, for the purpose of clarity the two terms are used interchangeably. Additionally, the terms mitigation expert and forensic expert are also used interchangeably. Again, while the two terms are not the same, for the sake of clarity the terms are used interchangeably.

Forward to the Third Edition

Mitigation remains in its infancy and a book such as this strives to serve as a steppingstone in the advocacy process. I recognize that each chapter could benefit from further explication and examples—and feedback from experienced criminal and immigration defense attorneys, prosecutors, government officers, and judges is always welcome. This third edition has been changed so that there is one large section for criminal lawyers and a second large section for immigration lawyers. In earlier editions the book was more integrated, but the present format appears more helpful to lawyers.

There is significant overlap between the sections for criminal lawyers and immigration lawyers and readers are encouraged to read the book as a whole for a comprehensive understanding of mitigation and social work forensics.  This is particularly true with regard to mental health issues some of which may be covered in one chapter but quite applicable to a topic in a different chapter. For example, immigration lawyers with deportation and waiver cases would benefit by reading both the chapter on extreme hardship criteria and also the chapters on mitigation criteria so that the respondent’s illegal behavior can be properly mitigated, especially when the matter triggers a serious analysis such as an Adam Walsh case. Likewise, the criminal defense attorney assisting the accused in a criminal complaint of domestic violence would benefit by reading the chapter on spousal abuse in immigration cases due to the overlapping issues and mental health criteria presented.

Finally, I regret that the previous edition contained several typos and I have tried to correct all errors, yet I am certain that many remain.

Forward to the Fourth Edition

I remain extremely grateful to lawyers throughout the United States who have provided positive feedback about this book. I am also humbled through the many e-mails and phone calls from social workers, psychiatrists, and psychologists throughout the United States who have incorporated clinical and forensic insights from this book into their own practices.

This edition has several expanded chapters. A new chapter on criminal mitigation in immigration matters has been included, as it stands as the most central concern in the area of immigration practice today.

Finally, I remain grateful to criminal and immigration attorneys throughout the United States—and their clients—who have placed their faith in my ability to provide competent, persuasive, and insightful clinical evaluations to assist judges, prosecutors, and government officers to gain a more informed understanding of our clients’ psychosocial backgrounds through an empathic narrative that ultimately humanizes the individual in the context of the factual underpinnings of the case.

It is the thesis of this book that the role of the lawyer and mitigation expert should complement and balance one another for the client’s benefit. Moreover, mitigation is not simply an effective tool for the sake of argument but a necessary factual underpinning to support legal statute and case law factors.

To my daughters:

Zohara Rachel Arava (Zoe) and

Keshet Idit Sarah (Rainbow).

And, of course, tennis.

PART I

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INTRODUCTION TO MITIGATION

Chapter 1

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THE HUMAN ELEMENT IN LAW: AN OVERVIEW

Introduction

This book is intended to assist primarily criminal and immigration lawyers who find that the complexities of the issues presented by their clients demand that the lawyer seek assistance from extra-legal resources to augment a client’s case or clarify an issue beyond the expertise or experience of the lawyer. This book will begin to fill in this gap by permitting the lawyer a window of insight into Mitigation Forensics—a crucial area of consulting which will permit the lawyer to attend to his client’s needs in a more complete way.

The earliest form of mitigation is recorded in the Bible when Abraham pleads with God to spare the people of Sodom and Gomorrah using the persuasive argument that the city as a whole should be spared to save a handful of righteous individuals. (Genesis 18:23-33). Moses also displays an adept mitigation argument when God plans to kill the Israelites in the desert stating: Why should the Egyptians say, ‘It was with evil intent that he brought them out, to kill them in the mountains and to wipe them off the face of the earth’? Turn from your fierce anger; relent and do not bring disaster on your people. Remember your servants Abraham, Isaac and Israel, to whom you swore by your own self: ‘I will make your descendants as numerous as the stars in the sky and I will give your descendants all this land I promised them, and it will be their inheritance forever.’ (Exodus 32:12-13). While Abraham bases his plea on mercy for the just, Moses bases his argument on God’s concern for what other nations will think and the Covenant he made with the Israelite’s forefathers. The real question is why does not Noah plead to God to avert the flood, which would kill every human in the world outside of Noah and his immediate family members.

Expert Help & Forensics

Lawyers are not equipped with nor should they be expected to fully understand every aspect of the client’s needs in the absence of assistance, such that it could be even considered misconduct for a lawyer to forego the help of allied professionals in certain situations.  Medical malpractice lawyers, for example, are prohibited from filing a negligence tort against a physician in the absence of a physician’s affidavit in the same or similar field attesting to the veracity of the client’s civil action. Child custody cases, moreover, are often accompanied by a social worker or psychologist’s report explaining the family system and mental heath issues that affect the child in and out of the home and weigh each parent’s claim. Most importantly, under Wiggins the Supreme Court has mandated defense counsel to procure a mitigation expert in death penalty cases. Criminal and immigration lawyers are no less in need of such help because of the myriad complex personal problems that the client brings as part of his claim or legal concern.

Extra-legal resources, such as forensics, that lie outside of the typical legal realm may serve as a crucial part of developing any legal case. Black’s Law Dictionary defines forensics, as belonging to courts of justice. That is, forensic experts consult to lawyers or judges where outside expertise is required in relation to legal principles and facts. For this reason there are forensic accountants, physicists, medical examiners, social workers, and many other professionals who assist lawyers. Ultimately, the role of the criminal lawyer and the mitigation expert should complement and balance one another for the client’s benefit.

Factual Analysis

Every law student who has ever briefed a case knows that most of the content in a case pertains to the fact pattern. Factual analysis is extremely important because it ultimately supports the evidence, but also because new case law is created through bright line rules, carved-out exceptions, and expansions, due to fact patterns that cannot be fairly resolved by the application of extant case law. The problem, of course, is that there are no law courses that focus on factual analysis—nor for that matter are there many courses that teach students how to take a deposition, how to write a complaint, how to behave in court, how to deal with clients who drive them crazy, or how to deal with the stress associated with the profession. Ultimately, all legal claims begin with a basic set of facts and constructing and deconstructing meaning and validity of such facts will make the difference between understanding the full parameters of a legal case versus missing out on valued nuances. Yet, to fully grasp all the relevant facts it is sometimes necessary to consult an outside expertise—such as a mitigation expert.

The Human Element

For persons trained in mental health, such as social work or psychology, law is conspicuous by the absence of human understanding. Law school is devoid of an appreciation of the client’s fear, anxiety, uncertainty, sadness, family constellation, and other human emotional, cognitive, and behavioral related matters that essentially help explain who we are and why we make decisions. For example, it is not unusual for a criminal defendant to choose a path contrary to his lawyer’s advice which in turn angers or mystifies the lawyer who cannot comprehend why a client would spend a large sum of money only to reject his lawyer’s opinion. While this happens every day in law offices the lawyer may not have the tools to properly counsel such clients nor to preserve the lawyer’s own professional reputation, which may become tarnished. Divorce lawyers have long ago recognized that the trauma, anger, and sense of loss associated with spousal separation and divorce induces the client to behave irrationally due to shock, lack of control, and a sense of helplessness.

Expressing the Client’s Narrative

The fundamental purpose of the mitigation report is to reflect the client’s life story through a sympathetic narrative with the assistance of a professional clinical expert who is trained in family-systems and mental health issues. This is particularly important for immigration and criminal clients who often have poor English language skills and / or little education. As such, the client may find it difficult or frightening to articulate his history and experiences in his country of origin and current life in a courtroom setting, or even to a trusted lawyer. This is particularly the case if the immigration client has experienced corrupt, inefficient, or extortionist government officials in his country of origin, or if the criminal client grew up in an abusive or dangerous environment or home where trust was absent.

Clients may also fear speaking in a courtroom or feel inhibited due to a psychiatric or medical problem. The client who suffers from depression, anxiety, or a psychotic disorder will be unable to explain what deportation will mean to him and his family and criminal clients may make incriminating or even false statements due to stress, fear, and pressure from the police who affect the appearance of a friend.

The mitigation report, based on a psychosocial clinical inquiry, examines a vast array of issues, including development, education, employment, finances, healthcare, legal issues, military service, cultural, language, religious, and many more. While there is a set pattern in the evaluation it must also be tailored to the particular history of a particular person. Such evaluations can also outline the person’s daily functioning regarding his activities of daily living, including dressing, eating, bathing, and other areas of self-care. The goal is to permit the reader to understand the client as a real human being with needs and feelings.

What is a Bio-psychosocial Assessment?

The bio-psychosocial assessment is conducted in order to determine if there are any factors that would explain how the client has come to be in his current position with particular consideration for:

strengths and weaknesses in the individual’s background,

general experiences as a child,

the quality of relationships to immediate and extended family members (family dynamics),

the health and well-being of the individual (includingpsychopathology),

the individual’s motivations and decision-making (psychodynamics),

the individual’s interaction with his environment and community in the context of education and socialization,and

if the individual experienced any childhood stressors, traumas, or major challenges.

It is crucial to point out that Axis IV of the Diagnostic and Statistical Manual Fourth Edition for mental health is devoted entirely to the category of bio-psychosocial stressors.

Conclusion

This chapter provided an overview of the challenges that criminal and immigration lawyers face when trying to understand their cases. This may require the help of extra-legal assistance from a mitigation expert who can draw out a fuller picture of the client’s issues and needs, as a means to humanize the client as best as possible and to provide the lawyer with the tools necessary to best effectuate legal representation.

Chapter 2

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A TRIPARTITE THEORY OF JUSTICE

Background

This chapter will outline central concerns with the criminal justice system and a tripartite theory of justice with consideration for not only judicial opinion and established law, but also the particular psychosocial history of the defendant (or respondent).

Overseers of Justice

The first serious problem in the criminal justice system is that only a small percentage of defendants have a jury trial such that the evidence compiled by the prosecutor against the defendant cannot be objectively examined by the trier-of-fact. As such, alleged evidence is no longer collected—by and large—with an eye towards a jury trial, but rather as a means for the prosecutor to gain leverage for a superior plea-bargain deal against the defendant.

The second central problem in the criminal justice system is that the defendant may be stating a falsehood in the plea bargain if he concedes that he committed a lesser crime than he allegedly did. That is, in many cases the prosecutor alleges that the defendant has committed crime X but because of expediency—among other reasons—the prosecutor agrees to allow the defendant to plea to a lesser crime, but not the crime that the defendant was accused of committing.

The third major problem is that the criminal justice system now operates in such a manner that the prosecutor assumes both the traditional role of prosecutor and also adopts an almost tyrannical role, as the prosecutor is aware that the vast majority of defendants will accept a plea rather than risk a lengthy jail sentence and / or exorbitant legal costs.

Conceptions of Justice

There are three basic conceptions of justice in the context of judicial decisions. The first concerns the proposition that the adjudicator’s subjective but wise opinion should serve as the basis for a just judicial outcome (perhaps with a consideration for natural law). The second asserts that the judge must defer to objective societal standards (positive law, such as criminal sentencing guidelines) to ensure fairness, moral equity, and that equal punishment is maintained. The third conception is that justice must be tailored to the individual standing before the court, which may permit both utilitarian efficacy on the community level and moral fairness for the individual. This restorative perspective on justice has the capacity to encompass distributive and consequentialist views of both liberal and conservative thinkers.

Illustrative Metaphor

The following story illustrates this perspective. There is a Jewish apocryphal tale from Eastern Europe of two women who bring chickens to a local rabbi to determine if the chickens are kosher for consumption before the Sabbath. The chickens appear exactly the same and both were purchased from the same farmer. The first woman is married to a successful merchant and upon inspection the rabbi declares the chicken not kosher because of a flaw on the body. The second woman is an impoverished widow and she too asks if the chicken is kosher for consumption. Although this chicken contains the same flaw as the first, the Rabbi pronounces the poor woman’s chicken kosher.

This tale reflects a core value in jurisprudence, namely that justice must be determined by a judge who has sense enough to use his judicial knowledge in a subjective reasonable manner while also deferring to a body of knowledge (in this case the laws of kashrut), but most importantly rendering a judgment based on the particular individual—in a particular community—standing in front of the court at that moment. Here, the wealthy woman is forced to discard the chicken and if she purchases a new chicken she will endure low financial and personal loss. In contrast, the impoverished widow would not only have been unable to purchase a new chicken prohibiting her family from enjoying the Sabbath meal but she would also suffer the shame of having to tell this to her family.

The Human Condition

Mercy and consideration for the individual is not extended because we feel sympathy alone, but because the person in judgment is ultimately human and like all humans he or she is in some manner weak, incomplete, fragile, or flawed. As such, that person needs to benefit from not only a compassionate judge and just laws, but the defendant’s essential flaws and even deficits as a human being must be considered as equally paramount with consideration for the community’s health and safety. In other words, the very fact that the accused (or respondent) stands in court is testament that he is not truly whole and his judgment is in some manner not well founded. Therefore, if justice is to prevail he (and perhaps even society) must be made whole again in a restorative fashion.

The Platonic Parallel

To some extent, this tripartite theory of justice corresponds to Plato's tripartite theory of justice found in Book IV of Republic. Plato asserts that reason, high spirit, and appetite must all be present and act in complementary fashion each fulfilling a function to ensure harmony. (Interestingly, this also corresponds Plato’s three classes of society).

For Plato, justice is ultimately linked to the imperative of rendering what is due to each person. Rather than thinking about justice as a set of actions, justice is better construed as a structure balancing the individual and society, a phenomenon that can spread in a positive manner to the society as a whole. Interestingly, Plato believed that justice must be intuitive rather than rational, which suggests that the implementation of justice is something that we are all capable of and that the realization of justice remains a worthwhile societal and personal lifelong pursuit. Thus, it is precisely when the flaws of the community members become evident that justice can be realized as a virtue, re-owned by the individual, and recaptured by society through the adjudicative process.

Plato's tripartite analysis of the soul puts forth at least three substantial claims. First, there are psychological agents of desire that control the forces that act upon the body. Second, the desires that an individual possess can be reduced to three corresponding psychological agents of desire that control human behavior. Third, the fundamental description of human psychology—out of the structure of the soul—has ethical implications and is necessary to an understanding of justice. These factors serve as excellent criterion for any psychosocial mitigation evaluation and should serve as cornerstone ideas that every adjudicator should consider for a just outcome.

I prefer to superimpose Plato's philosophy of justice with Freud's tripartite division of the psyche as comprised of the id (instinctually innate drives that lead us to impulsive and even foolish decision-making), the ego (the part of our mind that regulates healthy decision-making), and the superego (societal legal and ethical standards that are either externally imposed or that we internalize and which provides individuals parameters of sound decision-making and good conduct).

Extra-Legal Experts

There are, of course, substantial differences in the three areas of the tripartite model that I have presented. The objective law is outlined by statute and case law, which may be ascertained in an empirical and sometimes mathematical manner, especially with consideration for the sentencing guidelines. In contrast, we must defer to the subjective reasonableness of the judge given his judicial wisdom because without an inherent sense of trust in such individuals the entire system would have no basis and simply collapse. However, the idiosyncratic psychosocial background issues pertaining to the defendant is impossible to ascertain in the absence of a clinical expert’s mitigation and mental health evaluation because only