What is a Mitigation Package & How Can It Help You?

Sometimes, a client of ours is facing serious charges that carry heavy mandatory penalties and certain serious consequences that may follow. For example, a client may be charged with a second or subsequent DUI offense for which under Illinois Law, he is not able to be sentenced to Court Supervision. Instead, he faces a mandatory conviction with mandatory jail time and/or community service, to be followed by a mandatory revocation of his driving privileges by the Secretary of State’s office. Because of the nature of the case and the risks involved, sometimes our legal team decides that it may be beneficial to attempt to negotiate an amendment or reduction of the charges filed against the client with the prosecuting authority (such as the Cook County State’s Attorney’s office) in the hopes of avoiding the mandatory penalties and consequences associated with the original charges.

Many prosecuting agencies do not authorize their assistants to reduce charges on certain cases -- with DUI, gun charges and domestic battery offenses as common examples. Often, only someone with supervising authority may approve the amendment or reduction of the charges requested. Yet, the supervisor may be unfamiliar with the facts of the case as well as the history of the client and there is generally no real opportunity to have a meaningful "sit down" with the supervisor in order to have an effective negotiation session. So, it may be necessary for the case to be continued in court to allow sufficient time for the attorney to submit a "mitigation package" to the supervisor, in order to facilitate these plea negotiations.

How is a Mitigation Package Used in Pre-Trial Negotiations?

There are many different approaches as to how to present such a package. It is important to note that any and all information that is given to the prosecutor’s office will not only be considered by them in deciding whether or not to extend an amended or reduced offer, but it will also provide them with information that will likely be used in the preparation and presentation of their case at trial if no deal is reached. Of course, the State cannot disclose the fact that plea negotiations occurred at a trial, as that information is deemed privileged. But any information given to them, as part of any assertion of a defense to the charges, or even to excuse or mitigate the offense, can be investigated and made use of if relevant. For example, if one was to assert in the mitigation package that the client had only 2 drinks over the course of 2 to 3 hours at a given bar and the police then investigate and find out that he is a regular at the bar known by all of the bartenders, and on the night of the arrest he had no less than six drinks in those 2 to 3 hours, then the attempt to negotiate a good deal has now hit a wall, and the Defense has now given State evidence which they may not have had otherwise.

This raises an important point. Before a mitigation package is ever presented, from the moment that you consult with us in confidence at our very first encounter, whether over the phone, by email, or in person, you must be absolutely truthful in the information that you provide to us. For we will rely upon all of the information that you provide to us in the investigation and preparation of your defense and nowhere does this apply in greater affect than during pretrial negotiations, especially those where we will be giving written statements, evidence and information to the other side. So, when you withhold important information that we specifically asked of you, and something like the example above occurs, there is very little that one can do to put the spilled milk back in the bottle.

Negotiating with the Prosecutor

Because of the direct placement of personal information into the prosecutor’s hands, that they otherwise would not have access to, one can see that negotiating in this manner can be a risky proposition. It is therefore important to remember why we are negotiating in the first place. It is often to avoid going to trial, even if the case against you has weaknesses, because the possibility of losing exceeds the potential benefits of going to trial and "risking it all."

It is infinitely better to focus on why you deserve a "break" on the case, based upon the positive aspects that can be presented, rather than trying to convince the prosecutor how weak their case is and how little chance they have of obtaining a conviction. Indeed, it is our experience that many prosecutors will sometimes simply opt to go to trial and perhaps lose, rather than reduce the charges or make any special deals that may come back to "haunt" the office. Also, when you point out the weaknesses in your opponent’s case, you are encouraging them to find ways around the weaknesses or to compensate for them or otherwise render them of minimal effect.

How the Rules of Discovery Apply Matters

Most people are familiar with the very funny scene in the movie “My Cousin Vinny”, where Vinny learns about the rules of “Disclosure” from his non-lawyer fiancé. In Illinois, we refer to it as “Discovery.” It involves the rules regarding giving notice to the other side of the existence of physical evidence, witnesses, statements, etc. In misdemeanor cases, there is no reciprocal right of discovery, and you need not disclose any affirmative defense, or the existence of witnesses or evidence to the prosecution, yet, they must disclose much of their case to the defense, including information that may be favorable to the defense. In felony matters however, the defense does have the obligation to provide advance notice of witnesses, physical evidence, affirmative defenses, etc.

So, if you are submitting a package in mitigation on a misdemeanor matter, do keep in mind that we are giving the prosecutor a sneak peak at your case, so we should consider carefully what exactly is to be included. When it comes to evidence of one’s character, standing in the community, value to the lives of others, one should go all out. If you have legal defenses to the charges that you would raise at trial, usually we’ll keep those cards close to our vest. On a felony matter, you may well have to disclose the existence of your defenses: if they are affirmative defenses, such as an alibi, you must disclose them. If they are based upon physical evidence, or testimony and statements of others, you must disclose them as well.

Convincing Mitigation Packet Arguments

So, rather than try to beat up your opponent with bold assertions of how inferior the case against the client may be, we may instead choose to present convincing arguments that will make an impression on the prosecutor that our client is worthy of being given a chance on a reduced charge. The best place to start is to look to the Code of Corrections, under Chapter 730, Illinois Compiled Statutes, Section 5/5-5-3.1, factors in Mitigation. Any and all information that falls within any of these accepted factors in mitigation should be presented in the package to the supervisor.

Starting with the facts of the case, without harping on the evidence, we will usually point out the mitigating facts, which may include such things as: no one was hurt, no property damage occurred, you did not intend to cause anyone harm, perhaps there was provocation, or others induced your behavior. Next, we will usually choose to present any and all evidence of good character that we can.

It is very useful to obtain character reference letters from friends, family and prominent members of the community (members of the clergy, local business leaders, politicians, lawyers, doctors, teachers, law enforcement officials, etc.). The letters are best when written individually, signed and dated by the author, and including contact information. However, signed form character letters may also carry some weight also, if for no other reason than to show that many people care enough about you to sign off on a letter.

Effective Mitigation Letters

You should also present any evidence or information that shows that you understand your error and that the conduct is not likely to ever re-occur. This is best done in the form of a letter written by you and in your words, apologizing for what has transpired, what you have learned from the experience, what changes you have made to assure the conduct is in the past, and what steps you have taken to make the situation right (such as making arrangements to cover any damage or loss to others as a result of the conduct). Finally, it is appropriate to address any unusual hardships that you (or more importantly your dependents) will face if you are to be convicted as charged. This is best done in the form of letters from those dependents if appropriate (never ask a young child to write such a letter), as well as to present these hardships in your own letter.

After the supervisor receives the package, he or she will review the case with the assistant from the court room and decide whether or not to grant the relief being requested or to deny it or to compromise with something in the middle. At this point, if negotiations are unsuccessful, the matter can still be set for trial and fought upon the merits and you have likely lost nothing for the effort. Of course, if the negotiations were successful, then you saved yourself from the uncertain fate of a trial, in favor of a disposition that takes into account your personal situation, minimizes the harm to you and your family, and allows you to move forward as a productive person.

Contact Our Experienced Chicago Criminal & Traffic Legal Team

Since 1990, our experienced and knowledgeable Chicago criminal attorneys have represented tens of thousands of defendants charged with the entire range of criminal and traffic cases, from the least serious traffic matters to the most serious misdemeanors and felonies. We have the know-how to present you in the best light possible, preserve all your rights,  and to work towards the best disposition available. So, call us 24 hours a day at (312) 644-0444 to learn how we can help you through these difficult times.