Randy Wilson

More often than not, the punishment phase of a trial is treated like the "stepchild". It's something that takes a back seat to the "guilt/innocence" phase of the trial. However, with today's appellate courts, and the call for law and order that we face on a daily basis, the punishment phase of a trial can be more important than the guilt/innocence phase.

How often have you had a case, where the facts were such that you had little if no defense to the charge? Or how often has your client by the time you are appointed or hired done everything within his power to assist the State in proving its case? Today, it happens quite frequently. Often, we as defense attorneys are required to do little more than "damage control" in attempting to keep the punishment to a term that our client can accept or to minimize the number of years that he can be assessed.

Unfortunately, in recent years, I have found that we often measure success by beating the number of years that are actually assessed as opposed to what the District Attorney has offered. But if you are willing to put forth the effort, the punishment phase of the trial can be more important and more beneficial than the case in chief.

Most attorneys spend their time and effort on the guilt/innocence phase, rather than developing the punishment phase. I have found that often you can lose the battle, but win the war during this second phase of the trial.



First: Plea of not guilty to the jury, with jury to set punishment.

Second: Plea of guilty to the jury, with jury to set punishment.

Third: Plea of not guilty to the judge, with judge to set punishment.

Fourth: Plea of guilty to the judge, with judge to set punishment.


1. Deferred Adjudication
2. Probation
3. Jail time
4. Pen time
5. Community service
6. Restitution
7. Good of the community


You have to make the determination on a case by case basis. I would recommend that if the facts are such that the State has a "lay-down" case, that you consider selecting the punishment phase as the place to make your stand.

There are two ways to approach this. One is that you can let the court and the State know what you are going to do. The other is to not reveal your course of action, and let the State think you are going to fight them on the guilt/innocence portion of the trial; then at time of trial enter your guilty plea, and you are ready to proceed with the trial you have prepared, thereby circumventing the State from preparing for the punishment phase of the trial. Most prosecutors will not devote the time to the punishment phase of the trial and relying on police or law enforcement officers to testify to the bad reputation of your client, if they even have that available to them. You on the other hand will have witnesses ready to take the stand and tell the court or the jury what a great person your client is and why he shouldn't go to jail. Bottom-line is that not revealing your strategy will give you oftentimes great advantage over the State.

When trying to decide whether to go before judge or jury, you must know your judge, know your community, and know your client's background and history. For instance, I know a judge who is fairly light on drug users, but will hammer a child molester. Or another judge I know is often "swayed" by crying children begging not to send their daddy to jail. Talk to other attorneys, watch the papers as to sentences handed out and you can get a read on the judges.


I have listed the things that I look at to see whether this is a viable way to approach the case. I am quite sure there are more, but these are factors that work for me. They are not in any order of importance, but each must be looked at by you as the attorney as a way of possibly
assisting your client.

1. Evidence by the State
2. Past criminal history
3. Reputation of client
4. Family of client
5. Work history of client
6. Religion of client
7. Type of offense
8. Civic involvement
9. Psychiatrics of client
10. Children
11. Availability of witnesses
12. Victim of crime
13. Length of incarceration
14. Intelligence level of client
15. Judge
16. Extraneous offenses
17. Health of client

Depending on the case, I try to start work on the punishment phase of the trial from the date I am hired or appointed. In other words, I start trying to build character for my client immediately. And it is simple to do.

For the client that is out on bond:

1. Tell him to get a job or keep his, and to get as close to his boss or
supervisor as he can. This way his boss can tell what a great employee
he is.

2. Tell him to get involved in church. Not just go, but be active. Usher, attend
during each service, teach Sunday school, serve at Wednesday night suppers,
etc. All the while developing people that are in the church as possible character witnesses.
3. If young and living with his parents, develop a course of living to bring
parents into play as witnesses who have noticed a change in their child.

4. If living with wife or girlfriend, what better witness to a change in lifestyle
by client.

5. Volunteer work at the YMCA, boy scouts, etc. anything to get some more
witnesses lined up about his involvement.

6. If drugs had any part, get into a drug rehab or counseling program.

7. Get client into counseling. Counselors make great witnesses and they can
be hired guns that are very influential on judges and juries.

8. Education is another area that will develop witnesses that can be helpful.

9. New job training is another area that can help.

If not out on bond:

1. Get client involved in religious services at jail. More than just attending.

2. Education, most jails have in facility education or correspondence course
that can be signed up for.

3. Letters to relatives setting out remorse (WITHOUT CONFESSION) and
statements about setting his life straight and making a better citizen.

4. Communication with friends by letter or telephone.

5. If drugs are involved, get counseling etc. while in jail.

6. Have client prepare a "plan" once he is released. Include living conditions,
church, job, etc.

7. Have client's family arrange employment if released.

8. Take advantage of medical condition of client, if any.

9. Volunteer for any program in the jail. If can make work crew, or
trustee. Once again proving the change in your client.

The main concept is to develop a "plan of action" and to have all the bases covered to give the court or the jury something to get their "teeth" into. CAVEAT: IT HAS TO BE SELLABLE AND VIABLE!!!


I divide the witnesses up as follows:

1. Expert 6. Family
2. Employer 7. Church
3. Fellow employees 8. (If in jail) Jail employees
4. Relatives 9. Concerned citizens
5. Children 10. Civic leaders
11. Defendant

Each one of these are important and you must weave them together to form your "plan".


Most of the time, the State's reputation witnesses during punishment are law enforcement officers and victims or family of victim.

Law enforcement officers are easy to attack. They won't know where the client lives, his or her spouse's name, what church they attend, how many children they have, where the client works, etc. But NEVER, NEVER, NEVER, NEVER ASK AN OFFICER WHAT HE BASES HIS OPINION ON!!!!!!!!!!!!!!!!!!!!!!!!!!!!! You may never recover and the court may let him testify about things that could never come in otherwise.

As a General Rule victims and family of victims, should be left alone. You are not going to make much headway with them and if you are not careful you will invoke sympathy for them, thereby destroying your attempts to invoke sympathy on your side.


The nice thing about this is that you are not dealing with any facts that are in issue. You have the "sky" open to you to discuss about your client and his future.

Make sure that you prepare your witnesses for the following:

1. Have you heard questions.
2. Extraneous offense attempts by the State
3. Badgering by the State.

You can actually prepare your witnesses and with your most trusted, set traps for the prosecution to step right in the middle of.

You want to use your witnesses to make the jury or the judge a part of the family. You want tears, crying, weeping, begging for forgiveness, all coming out. Emotion can be a deadly weapon to the State. The State is not going to jump all over an emotional witness, begging for forgiveness, begging for mercy, and pledging his loyalty to your client. You want to make sure that you have every facet of life of your client impregnated with assistance from family, clergy, friends, employer, etc.

Finally, the most time in preparation of witnesses should be spent with your client. Develop your plan and have him know it backwards and forwards, with an unrelenting pledge to make a positive contribution to society and begging for leniency. I have never been able to prepare a client in less than two hours of mapping out, practice, and preparation for him to be crossed. So you should take your time to cover all of these areas.


I hope that you can use some of the suggestions I have made. My experience has been that you can often turn a "sow's ear" into a "purse", it may not be silk, but you are able to cut your client's exposure and time, and oftentimes walk out of the courthouse with him.