What says the defense? (Part Four)

Welcome to the the last in my four-part look at what I see as the primary stances taken by defense counsel in criminal cases.

As a final reminder, and click on the links to review, they are:

1. My client is innocent.

2. I'm not saying my client is innocent, I'm saying you can't prove he's guilty.

3. Maybe my client is guilty, but he has good reasons for what he did.

Which leaves us with:

4. Fine, my client is guilty, has no real excuse, but here's why you should be lenient.

When all else fails, defense counsel have but one option: to throw their client on the mercy of the State and/or the Court.

Which is where defense lawyers love to be able to forum shop, and I don't blame them: Judges have differing levels of leniency/mercy, as do prosecutors. Some take Shakespeare's view that "Nothing emboldens sin so much as mercy." I tend to agree with that fine bearded fellow Abe Lincoln, in that "I have always found that mercy bears richer fruits than strict justice."

So in what kinds of cases do we see pleas for mercy?

All of them. Absolutely all of them.

The most generic plea for mercy goes like this:

Defense: "Look, my guy says he can't take a felony. If he does, he'll lose his job."
Prosecutor: "Oh, wow, that wouldn't be good. How come he didn't think of that before?"
Defense: "Well, you know. Rush of blood or something. But he has a wife and kids, man, how's he going to feed them?"
Prosecutor: "Seems like everyone in the world can make that argument, right? Do we stop prosecuting felonies because felons will lose their jobs?"
Defense: "I'm just talking about my client, why you should care about him."
Prosecutor: "I know. I just don't see why I should care more about him losing his job than he does."

So, all in all not a strong argument. It's tough as an ADA to remember that, even if it's presented to us that way, we're not the ones responsible for a guilty defendant's predicament. My feeling is that mercy, whatever that truly means, is based on more individual factors: the defendant's health comes up sometimes. Maybe he's the sole caregiver for his mother.

Believe me, we get a lot of stories and I always ask for proof - medical paperwork to back up claims of terminal kleptomania, letter from a doctor (on letterhead please, and no pencil scribblings accepted).

Another common one is that a conviction will result in deportation. I've discussed that here before, so won't reopen that can of worms. :)

Here are some other, more crime-specific, examples:

Possession of drugs - "He's an addict, have mercy on the poor guy."
DWI - "She's an alcoholic, it's a disease, have mercy on the poor gal."
Assault - "He was under a lot of pressure/stress from work/mother-in-law."
Theft - "She was trying to feed her kids." Or, I really did hear this once: "She had to steal. She can't get a job because of her criminal record."

So who are you with? Shakespeare or Lincoln? I think a nice middle ground, since I'm throwing out quotations here, is something Thomas Adams said, which defendants would do well to remember, too:

"He who demands mercy and shows none burns the bridges over which he himself must later pass."