|Are We Devil or Angel? Maybe we are both? |
The Problem: Is it ALL Just Black and White?
People love moral imperatives. Which are the: "this is good" and "this is bad." He is good and she is bad or she is good and he is bad. Placing these absolute labels on people, things, or events doesn't work well in the real world. In reality land (right next to reality world) things, people, and events have two sides. Blessing and curse usually come together. Our weaknesses are also our strengths and our mistakes (failures) so often turn out for the best.
Infantile minds or immature mindsets may disagree with me but I have been around long enough to see this play out. I can tell you don't be too quick to judge a thing or a person. Getting to know something or someone "fully" gives you the truth. Call it a holistic or a complete view but looking at the glass of water as half- full or half-empty is not the best approach. I don't want pessimistic or optimistic, I want realistic. The actual is the real. Labeling is not the truth. It is a perspective. A viewpoint. It is usually biased based upon your upbringing, culture, and family role models.
Are Defendants Demons?
So why are we here? Because prosecutors, judges, and sometimes even the probation department may seek to DEMONIZE (label) defendants as bad. They may forget that behind the criminal act or actions lies a person. This defendant is at their core a human being who for many reasons may have went off the track, had a lapse in judgement, and did something we would never do? OR would we?
I am being facetious now but you are starting to get my point. We are all people under the skin with hundreds of character traits. Noone is perfect, (well maybe my wife) we all make mistakes at one time or another.
How best to Defend a person?
There are legal defenses, then there are factual defenses, and then there are equitable defenses. Why do so many people plea guilty to something (over 93%)? Because they are guilty of something. Is this a big surprise? Getting over this juror bias of guilt based upon being charged with a crime is a hurdle.
Sometimes all we (without legal and/or factual defenses) have are equitable defenses. If someone is on the second DWI or third drug/alcohol related offense, sometimes limiting their exposure to years of probation supervision or a long jail term or prison term is the big win. Sometimes getting them the help they need is the true home run.
I have used the following methods to help my clients in many Courts over past fifteen years. To the degree it is tailored and specific to the client will directly relate to it's effectiveness as a strategy, and a reality. My disclaimer: just because it has worked for me and some clients over the years is of course NO guarantee of future success but given my druthers I believe in my heart of hearts that it is a great tool in any attorney's toolbox.
The Solution to Demonization: HUMANIZE Clients Prior to SENTENCING
I believe the best way to sway and to persuade those making a decision on punishment or rehabilitation (post plea) is through STORY. Before a client is to be sentenced, the Judge needs to know this person's story.
STORY is best brought out using a SENTENCING MEMORANDUM
This is a chance for the lawyer/advocate to EXPLAIN and HUMANIZE their client:
The story has many chapters. The story has details. The story has human interaction. Everyone has a story and everyone enjoys a good story (if it is told well). The KEY here is told well. Boring people tell boring stories.
What is this person's story? Where did they start (come from)? What's their background?
What people have been a part of this person's life? What roles have they played (husband, father, son, brother, uncle, cousin, nephew)? How have they played these parts? What have these people meant in the client's life? What good things has the client done? What activities have they participated in? How have they helped their community, their family, and their friends over their lifetime? What led the client to this criminal act? What has the client done since their arrest? Have they worked on themselves? Have they gone to mental/drug/alcohol counseling/classes/workshops/therapy/treatment? Does the client have a plan and goals for their future? What do they see themselves doing in the immediate future?
STORY GOES to the HEART NOT the Head
Attorneys must do this for their clients to receive a balanced sentence. use of Client Story is the best way to influence. It is the oldest and most effective way to get to the heart of people. Therein lies the compassion we seek in those who job is to Judge us.
Justification and explanation will try to influence and persuade the head. This is a lost argument. Fair sentence don't come from logic and reasoning. They come from people being human. People are moved through emotion.
The sentencing memorandum brings a chance for humanization and compassion. Those who are accused deserve not only a second chance at redemption but also an opportunity to have their story heard for maybe the first time.
Always consult with an attorney about any criminal or non-criminal charges you have pending to discuss your options and/or defenses.
Originally, born and raised in Brooklyn, NY. My father was a NYS corrections officer, and my mother a waitress. I now live in Ithaca, NY with my wife (of 25 years), and four kids. I have a B.S. in Human Biology, Doctorates in Law and Chiropractic, and a Post Graduate in Acupuncture. I practiced as a Chiropractic Physician in Florida from 1986 to 1995. I graduated law school in 1997, and went on to practice trial law in FL, NY, NJ, and PA. I love practicing criminal defense and injury law within the Finger Lakes Region of New York State.
Over 90% of the cases that I take on are New York DWI defense cases. I am certified as a breath tester by the Department of Transportation, the guidelines of the International Association of Chiefs of Police (IACP), and the National Highway Traffic Safety Administration (NHTSA). I am certified in Field Sobriety Tests, and an active member of the National College of DUI Defense (NCDD). My online materials include over 450 blog posts, dozens of articles, and over 440 informative videos on my youtube channel.
I have co-authored Strategies for Defending DWI Cases in New York, in both 2011 and 2013. These are West Thomson legal manuals on New York State DWI defense, and focus on the best practices for other lawyers handling a New York DWI case. Included in Strategies for Defending DWI Cases in New York are materials I provide clients, such as my fee agreement and ways to avoid misdemeanor probation. I was selected by Super Lawyers as a Upstate New York 2013 Rising Star in DWI/DUI Defense based on my experience, contributions, and professional standing.