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March 17, 2014

"Last Words: A Survey and Analysis of Federal Judges' Views on Allocution in Sentencing"

The title of this post is the title of this notable new article available via SSRN co-authored by a federal judge and a law professor. The piece, by Mark Bennett and Ira Robbins, examines an arena of sentencing law and practice that rarely gets the attention I have long thought it deserved.  Here is the abstract:

Allocution — the penultimate stage of a criminal proceeding at which the judge affords defendants an opportunity to speak their last words before sentencing — is a centuries-old right in criminal cases, and academics have theorized about the various purposes it serves.  But what do sitting federal judges think about allocution?  Do they actually use it to raise or lower sentences? Do they think it serves purposes above and beyond sentencing? Are there certain factors that judges like or dislike in allocutions?  These questions — and many others — are answered directly in this first-ever study of judges’ views and practices regarding allocution.

The authors surveyed all federal district judges in the United States.  This Article provides a summary and analysis of the participants’ responses.  Patterns both expected and unexpected emerged, including, perhaps most surprisingly, that allocution does not typically have a large influence on defendants’ final sentences.  Most of the judges agreed, however, that retaining this often-overlooked procedural right remains an important feature of the criminal-justice process.

This Article also synthesizes judges’ recommendations for both defendants and defense attorneys aiming to craft the most effective allocution possible.  Critical factors include preparing beforehand, displaying genuine remorse, and tailoring the allocution to the predilections of the sentencing judge.

March 17, 2014 at 09:45 AM | Permalink

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Comments

Interesting survey. I think the results say what most better trial attorneys on both sides have known for a long time (but what appellate attorneys/courts do not necessarily get). The defendant most likely to get mercy from a judge/jury is the defendant who: 1) admits that they screwed up; 2) is sorry for the damage that they have caused; and 3) have a plan for rehabilitation. The defendant least likely to get mercy is the defendant who: 1) has a history of criminal activity; 2) is only sorry that he got caught; and 3) wants to blame somebody/something else for his criminal activity (drugs, mental illness, the system, the victim, his friends).

Posted by: tmm | Mar 17, 2014 10:31:41 AM

"Patterns both expected and unexpected emerged, including, perhaps most surprisingly, that allocution does not typically have a large influence on defendants’ final sentences."

I don't know why this is surprising. My experience over 18 years litigating federal cases was that the judge almost always has written out what he's going to say before he takes the bench, and just reads it.

"Critical factors include preparing beforehand, displaying genuine remorse, and tailoring the allocution to the predilections of the sentencing judge."

I agree with that, but would add a couple of things. First, GENUINE remorse is a scarce commodity, because criminals tend to believe much of what gets said on this forum, to wit (1) that what they did wasn't really wrong; and (2) even if it was, the blame lies elsewhere (bad parents, the "wrong crowd," lousy schools, the cops, society, etc.). Believing this, they see no reason to be remorseful. They think, to the contrary, that it's The System that should be remorseful.

Second, people being sentenced might get the judge to actually pay attention if they did something unexpected: Make a clean breast of things. What you usually hear is something like, "I can't really say why I did it," or, "The main thing I want to do is apologize to myself for falling short, and my family."

I love it when these guys apologize to themselves.

I really do wonder what would happen in the judge's mind if one of these druggies ever said at allocution:

"Judge, I know I could give you the standard lines, but I want to do something different. I did this crime because I wanted quick money. I knew drugs can be dangerous but I didn't care; that's the problem of the people who bought them from me. And I'd ask you to consider that a whole bunch of smart people think drugs should be legal anyway.

"As to my family, I never got married, because I'm just not into that kind of stuff, but I do have five kids by three different girlfriends. To be honest, I haven't even seen three of the kids in a couple years, and I don't support any of them. Not my problem.

"A lot of people stand up in this court and fling the BS at you about how sorry they are. I thought you might cut me a break because I'm one of the very few who'll tell you the truth."

I'm not recommending this, mind you, and I've never seen it happen, but I'd love to. I think the judge would faint.

Posted by: Bill Otis | Mar 17, 2014 10:35:17 AM

What about innocent defendants who are facing sentencing?

As we all know by now, many innocent defendants are convicted and sentenced in our flawed criminal justice system. Some innocents are convicted by juries. Some innocents actually enter into plea bargains -- sometimes Alford pleas -- in order to get out of jail or to avoid the risk presented by harsh mandatory minimum sentencing provisions.

What should they say to the judge at sentencing?

Posted by: J. Preston | Mar 17, 2014 11:56:16 AM

|And I'd ask you to consider that a whole bunch of smart people think drugs should be legal anyway. |
Such as Timothy Leary thought?

 “We always have urged people: Don't take LSD unless you are very well prepared, unless you are specifically prepared to go out of your mind.”
 “The only abuse of drugs is the control of drugs by other people.”

 “My advice to people today is as follows: If you take the game of life seriously, if you take your nervous system seriously, if you take your sense organs seriously,
if you take the energy process seriously, you must turn on, tune in, and drop out”.
 “A psychedelic experience is a journey to new realms of consciousness. … Most recently they have become available to anyone through the ingestion of psychedelic drugs
such as LSD, psilocybin, mescaline, DMT, etc.”

 “Drugs Are the Religion of the People — The Only Hope is Dope”
 “Monotheism is the primitive religion”

 “If you are serious about your religion, if you really wish to commit yourself to the spiritual quest, you must learn how to use psychochemicals”
 “When in the course of organic evolution it becomes obvious that a mutational process is inevitably dissolving the physical and neurological bonds which
connect the members of one generation to the past … a decent concern for the harmony of species requires that the causes of the mutationshould be declared.”

 “People use the word "natural" ... What is natural to me is these botanical species which interact directly with the nervous system. What I consider artificial is
4 years at Harvard, and the Bible, and Saint Patrick's cathedral, and the sunday school teachings.”
 “I am 100 percent in favor of the intelligent use of drugs, and 1,000 percent against the thoughtless use of them, whether caffeine or LSD.”

 | MR. KUNSTLER: Dr. Leary, what is your present occupation? |
 | THE WITNESS: I am the Democratic candidate for Governor in California. |

Posted by: Adamakis | Mar 17, 2014 12:17:09 PM

I have some concerns about the methodology. It really is measuring what Judges think influences their decisions as opposed to what actually does. That being said, it does seem broadly consistent with experience.

I view allocution as an attempt to bolster an otherwise strong sentencing argument. If the defendant can seem sincere, remorseful, and willing to be proactive in achieving rehabilitation, that will strengthen an argument made by the defense attorney about the mitigation mixed with changed circumstances that suggest a change in the future. However, if the attorney's argument is weak (or the attorney has little to work with), the greatest orator ever as a defendant couldn't do much. It also works best with a defendant who has something unique to offer. Otherwise, there's a weird balancing act - Judges expect to hear certain things but one of the things they don't want to hear is what they hear everywhere else. Hopefully the Judges are accurate about their own belief that a bad allocution doesn't result in a higher sentence. Otherwise, there are good reasons to forgo the right (belief in actual innocence/wrongful conviction, lack of remorse, etc.).

I'd like a followup study to measure the things Judges find valuable besides sentencing reduction (like defendant participation in the process) and see if the defendant feels the same way. While there are some who are just itching at a chance to speak, I suspect most won't even think their opportunity to speak will matter much if the Judge just kindly thanks them for those words and hammers them anyway.

Posted by: Erik M | Mar 17, 2014 12:38:02 PM

J. Preston --

"What about innocent defendants who are facing sentencing?...What should they say to the judge[?]"

Ummm, sure, OK, here's a suggestion:

"Your Honor: That plea agreement I signed was a bunch of baloney. And the statement of facts -- haha, I just made that up. My lawyer helped me, because he's in cahoots with the prosecutor, at least when he's not drunk or asleep, which is most of the time. That's why he didn't find the shrink who would have testified that I was, ummm, abused as a child. Yeah, that's it, abused as a child! Will that get me off?

"Still, for as bad a my lawyer was, he's not half the cretin the prosecutor is, for indicting someone he knew was innocent just to get his fascist jollies. Plus, he hid the evidence that I was in, ummm, Mongolia at the time I -- make that "somebody" -- sold the heroin.

"But for as much of a pig as the prosecutor is, he doesn't hold a candle to you, for paying off Obama to put you on the bench under the pretext that you're for the little guy, even while you go to the same country club as the prosecutor, and reside in the same sinister, greedy, disgusting, very bad One Percent crowd. You people love to lord it over everybody, especially victims of Big, Bad Society like me. So why don't you go screw yourself, you Nazi punk." ###


OK, there you have it, J. Preston. I'm not that creative myself; I just cobbled it together from the comments I've seen here over the years.

Best of luck to your "innocent" client when he gives the speech that's truly in his heart.

Posted by: Bill Otis | Mar 17, 2014 12:45:29 PM

A truly innocent defendant is in a bind at sentencing. Rehabilitation and incapacitation are valid goals of a sentencing system.

A guilty person who acknowledges guilt and wants to change has a chance at convincing a judge that she will not be a problem in the future, and thus might get a break from the judge. The guilty person who claims that he has done nothing wrong and does not intend to change in the future is exactly the type of person that society has an interest in locking up for an extended period.

At the time of sentencing, the mistakenly convicted looks like a guilty person to the judge. As the article suggests, that person should probably say very little at sentencing other than declining to make a statement on the advice of counsel. Like it or not, the vast majority of people who are convicted over their claims of innocence are actually guilty. These people poison the well for the mistakenly convicted as there is nothing that the mistakenly convicted can say that is going to sound differently from the liars falsely protesting their innocence until their last breath. Trying to reargue the case at sentencing is only going to dig the whole deeper and they should let their appellate and post-conviction counsels do their job to show the mistakes that led to the inaccurate conviction.

Posted by: tmm | Mar 17, 2014 12:58:19 PM

Erik M --

I appreciate your comment. I wonder, though, whether most judges will ever believe, or should believe, that the defendant's in-court behavior -- especially at sentencing, when the defendant knows there's a premium on at least putting on an appearance of contrition -- has much reliability at all as an indicator of future out-of-court behavior.

Posted by: Bill Otis | Mar 17, 2014 12:59:32 PM

tmm --

If I'm remembering correctly, you are now a prosecutor who was once a defense lawyer. Having seen both sides, let me ask you this:

As a prosecutor, have you convicted anyone who turned out to be factually innocent? Has anyone in your Office done that, to your knowledge? Has anyone in your Office indicted someone with good reason to know the indictee was innocent?

As a defense lawyer, how many factually innocent defendants did you run across who got convicted? Did you ever advise a factually innocent person to tell a judge, in a plea agreement hearing or otherwise, that he was actually guilty? Do you think such a practice -- which entails outright lying to the judge -- is at all common among the defense lawyers you know?

Posted by: Bill Otis | Mar 17, 2014 1:09:34 PM

In my previous office, I can think of one time that a factually innocent person got convicted. It was a felony possession case with a probation offer. The defendant just wanted the case over with and did not want to wait for the lab test (field test was positive). Lab test revealed that he had purchased junk. We set aside the possession and let him get probation on the misdemeanor paraphernalia charge.

In the grand jury, if the case was a close call, we let the grand jury know that we had concerns and left it up to them. I can't think of a case in which we sought charges knowing that a defendant was innocent.

I can only think of one client that I am convinced was probably innocent of the case on which he was convicted. (Local drug dealer who was one of targets of undercover operation, but probably did not make the one sale with which he was charged.) Personally, I think I only used the hammer on one client (he actually walked at trial). For the most part, I left it up to the client rather he wanted to take the deal or go to trial. Occasionally, I had a client who claimed that he was too drunk to remember that we managed to get the State to agree to an Alford.

In my area, I think it was more common for defendants to enter an Alford plea or do a bench trial if the defendant could not admit guilt, but obviously do not know for what clients told their attorneys about actual guilt. But at the nearly mandatory post-conviction petition for those who went to jail, not many claimed that their attorney told them to lie about guilt -- a lot more claimed that their attorney told them not to raise any complaint about counsel.

Posted by: tmm | Mar 17, 2014 2:26:47 PM

tmm,

Which is why Gall is the only federal offender I can name whom I would actually consider worthy of leniency. He made the choice to leave a massively profitable enterprise even before being prosecuted.

Posted by: Soronel Haetir | Mar 17, 2014 2:47:36 PM

tmm --

Thank you for your answer. As I have said before, it's invaluable to have a commenter who (1) is sensible, (2) not an ideologue one way or the other, (3) moderate-to-liberal, and (4) has experience on both sides.

Your answer buttresses my view that the numerous claims we see here that perfectly innocent defendants falsely plead guilty is so much baloney, as is the claim that innocent men are routinely shipped off to prison because of malicious prosecutors and judges (of for any other reason).

It is of course true that there is the occasional bad apple in the prosecutor's office and on the bench (and among the defense bar). But the notion that these people, or The System, connives to send the innocent to jail is paranoid nonsense.

Every system in the world makes some errors, and every system must make tradeoff's between tilting too far in one direction or the other. If people would grow up and accept this, we'd be a lot better off.

Posted by: Bill Otis | Mar 17, 2014 3:32:05 PM

I don't know that I've ever seen a case described (certainly not one that resulted in a guilty verdict) where the facts later showed that the defendant was in fact innocent was pursued by prosecutors despite knowledge of that fact. Plenty of cases where the charges were pursued despite the prosecutor having should known or with reckless disregard for that truth, but not with actual knowledge of it. I would also say, however, those are still categories of error that should not be tolerated.

Posted by: Soronel Haetir | Mar 17, 2014 5:43:11 PM

The West Memphis Three: Prosecutor insisted upon, and court accepted Alford pleas from the WM3, even though DNA evidence points to the actual perpetrator of the horrendous triple homicide in the case.

The Norfolk Four: Four members of the United States Navy spend years in prison for a rape/murder they didn't commit, thanks to the handiwork of a dirty cop and insane and/or inept prosecutors.

Innocent people get convicted. Scores of innocents spent time on death row in Illinois.

Look at the stats on the Innocence Network. It's there in black & white.

Posted by: Karen Fitchett | Mar 17, 2014 7:03:39 PM

Bill:

"I appreciate your comment. I wonder, though, whether most judges will ever believe, or should believe, that the defendant's in-court behavior -- especially at sentencing, when the defendant knows there's a premium on at least putting on an appearance of contrition -- has much reliability at all as an indicator of future out-of-court behavior."

The ideal answer should be the Judge should believe it when it's true and disbelieve it when it's not. But I think we all agree that's a stupid answer because it doesn't at all conform to the real world. I really do think it's a bind for those who are sincere and can articulate that sincerity well because a Judge will still have far too much of a healthy skepticism for it to matter much. It's why actions generally speak louder than words (it's better to demonstrate rehabilitation that to explain why you feel remorse). Of course, plenty of people with no intention of changing will take actions that shorten there prison sentence and plenty of people who want to take those programs will just be limited by lack of resources.

It's part of the reason I'd like to see a followup study to see if defendants actually feel there's value in an allocution from a participation perspective. Otherwise, there are too many reasons to think it doesn't work the way it's supposed to (which raises further questions whether our society's valuing of remorse at sentencing even has a place in criminal punishment if it ends up just being arbitrary and inconsistent).

Posted by: Erik M | Mar 17, 2014 8:52:24 PM

Karen Fitchett --

"Look at the stats on the Innocence Network. It's there in black & white."

All manner of authoritative sounding stuff is in black and white: The many tracts attesting to the innocence of Roger Keith Coleman and Troy Davis, for example. There are numerous black and white renditions of how Obama was born in Kenya, how Bush arranged 9-11, and how Flight 370 was abducted by space aliens.

That something gets written down on some fruitcake website with an axe to grind is about as impressive as a fifth grader's explanation of existentialism.

Posted by: Bill Otis | Mar 17, 2014 10:03:16 PM

hmm guess this means we should consider any website using the ".gov" to be a bunch of fruitcakes?

Posted by: rodsmith | Mar 17, 2014 11:41:29 PM

Bill,

Your above post is why it's impossible to think of you as much more than Sean Hannity with a legal pedigree. You fume when people call you or people you care about names out of frustration, but then infer the litany of individuals exonerated by DNA evidence are analogous to 9/11 conspiracy because they are both... written somewhere? Those people had families destroyed in part by the "prosecutorial discretion" you evangelize.

Posted by: Skeptical | Mar 18, 2014 2:44:10 AM

Skeptical,
On this site, I'm working my way up the list of 19 proclaimed "innocents".
If I am to find a truly innocent person, I shall accept it and declare it.

I only ask that liberal partisans do the same of the guilty, akin to Sean Hannity
needling Susan Rice, Lois Lerner, Eric Holder, and others to admit their unscrupulous conduct.

...........................|
sentencing.typepad.com/sentencing_law_and_policy/2014/02/the-banality-of-wrongful-executions.html
sentencing_law_and_policy/2014/02/victims-families-laments-govs-execution-moratorium-in-washington.html {2 x “innocents”}
sentencing.typepad.com/sentencing_law_and_policy/2014/03/the-state-of-the-death-penalty-in-the-sunshine-state.html#comments

Posted by: Adamakis | Mar 18, 2014 8:45:55 AM

Skeptical --

1. "Your above post is why it's impossible to think of you as much more than Sean Hannity with a legal pedigree."

Which post above? I'm fondest of the second and the sixth posts on this thread, which I notice have gone without an answer.

Whatever. I guess the question is why I would be concerned about the opinion of me held by the ten zillionth person posting anonymously on the Internet who dislikes my positions but wants to stay behind the curtain.

2. "You fume when people call you or people you care about names out of frustration..."

Just so people know what you're trying to pass off as merely a little "frustration," I'll repeat verbatim the remark to which you are referring (emphasis added):

"These types [AUSA's who disagree with Eric Holder] strike me as power hungry and/or sadistic and not the type of folks who should be key actors in our criminal justice system. Bill Otis is a disgrace for helping these people. What is wrong with you? You have nothing better to do then support those who would keep in place our monstrosity of a criminal justice system? There is a term for those like you AND YOUR WIFE who help the fascists suppress liberty and eliminate supposed undesirables from society -- kapos."

The slug who wrote this chose -- guess what! -- to do it anonymously!

Although I'm often "accused" here of being a WASPy One Percenter, my wife is Jewish. Her father fought the Axis in WWII, at great risk of injury, death or capture. For you people to say that my wife -- who has never posted a word on this site -- is a "kapo" is way, way beyond offensive. It's a vile, disgusting and false insult and you full well know it.

But to you, Skeptical, it's, ya know, just a little name calling done out of, haha, a bit of "frustration." This is why you cheerfully excuse rather than condemn it -- condemning being what any serious and decent person would do.

So, as you see the world, the problem is not the smear-artist who writes this stuff; the problem is that I, as you graciously say, "fume" about it.

Fine. You want that kind of thing to be directed to your family?

Yes or no.

Do you think it's within the bounds of respectable debate?

Yes or no.

Do you approve of it's being done anonymously by some yellowbelly?

Yes or no.

Do you think the problem is that it gets done (by your allies), or that I object to it?

3. "...but then infer the litany of individuals exonerated by DNA evidence are analogous to 9/11 conspiracy because they are both... written somewhere?"

First, I didn't infer anything. The word you're looking for is "imply."

Second, I didn't say the litany was analogous to the 9/11 conspiracy -- a grotesque crime brought off by Jihadist thugs. I implied it could be compared to fruitcake theories that George Bush was IN WITH the Jihadists (or that it was only Bush and no Jihadists).

Third, I noted that these claims were, as you say, "written somewhere" only because Ms. Fitchett had vouched for the certainty of her "knowledge" by saying, "Look at the stats on the Innocence Network. It's there in black & white."

Yeah, well, there are dozens (if not hundreds) of innocence networks and prisoner webpages proclaiming innocence. Am I supposed to be impressed? I spent many years in federal court, and I know how "innocent" these folks actually are (as I strongly suspect you do as well). The fact that something is written down "in black & white" means absolutely zilch, as you surely know.

Fourth, if I'm Sean Hannity with a legal pedigree, what are you? Kieth Olbermann with a legal pedigree? Martin Bashir with a legal pedigree?

Last, as I noted to tmm, every system in the world makes errors, and every system must make tradeoff's between tilting too far in one direction or the other. If people would grow up and accept this, we'd be a lot better off.

But you ignore this fact -- a fact known to everyone who has come to grips with the realities of adult life -- and keep right on keepin' on, insisting that The Pristine Innocent are being railroaded, and that the only roadblock to this outrage is The Equally Pristine Defense Bar.

I mean, it is pristine, isn't it?

Meanwhile, you cheerfully glide over the disgusting anti-Semitic slurs made against my wife. Is that because you agree with them? And agree with that style of argument -- as long as it's only directed to your opponents?

Do tell.

Posted by: Bill Otis | Mar 18, 2014 11:06:38 AM

Notice how Mr. Otis does not respond to the points made about 1) the West Memphis Three, 2) the Norfolk Four, and 3) the Illinois death row exonerees?

Posted by: Phil Jensen | Mar 18, 2014 12:16:21 PM

A comment above asks if the prosecutor ever went after someone they knew to be innocent...I've pointed out before that I believe myself to be such a person...
and thankfully was acquitted by the jury of all charges in 2011(conspiracy to commit money laundering and 12 counts of money laundering)...however my spouse, who continues to maintain innocence, and is on direct appeal, was found guilty of almost all charges by the same jury (including the conspiracy to commit money laundering with ME! the only other named party to the conspiracy!) Spouse did choose to speak at sentencing... neither claimed innocence nor denied guilt...but basically said that the jury process found spouse "wanting" at this time, and that it would have to accepted for now. Spouse was given a 25 year sentence for a first time non-violent offender. Reading this survey, and participating at the sentencing...I'm thinking the judge had already decided the sentence ahead of time, and didn't give a fig at what was said at sentencing. It's still hard for me to understand how you're supposed to break down in tears of remorse and apology at sentencing if everyone knows you're definitely going to appeal based on your maintenance of innocence.

Posted by: folly | Mar 18, 2014 1:53:00 PM

Phil Jensen --

I didn't respond to them by name, but I responded more than you ever have to the inevitability of error in this or any system.

I notice you haven't responded to the OJ Simpson or Casey Anthony miscarriages of justice, either.

But I won't bug you about it. As I say, error is unavoidable. Grow up and learn to live with this unfortunate fact.

After that, tell us whether you find it acceptable for commenters to launch anti-Semitic slurs against the families of other commenters.

Posted by: Bill Otis | Mar 18, 2014 2:42:48 PM

OJ was obviously guilty of murder. I don't know about the weird Vegas case. In any event, I suspect more was at play than merely determining guilt vs. innocence in the deliberations of the downtown LA jury. Wasn't that pretty obvious when we saw the dramatically different reactions to the verdict in different communities?

Casey Anthony? Was she obviously guilty? Not in my eyes. Certainly, she was not obviously guilty of 1st degree murder. Heck, the prosecution in that case had NO evidence of manner of death. Yes -- there is reason to be very suspicious about Ms. Anthony, but the evidence in that case was weak in many respects.

In any event, "erroneous" acquittals are much more palatable than erroneous convictions. So says the Supreme Court of the United States, and so said the Founders.

Bill Otis cannot and will not discuss cases like the West Memphis Three, the Norfolk Four, and the numerous indisputably innocent men who spent time on death row in Illinois. Instead he squawks that those who point to these perversions of Justice should "grow up." Easy for him to say. Neither he nor his loved ones have spent decades in a dungeon for crimes they did not commit.

Posted by: Karen Fitchett | Mar 18, 2014 3:34:53 PM

Karen Fitchett --

1. Name the justice system in any civilized country, ever, that is or was infallible.

2. Name the justice system in any civilized country, ever, that does not have to make tradeoffs between procedural rules that tilt too much toward the risk of convicting the innocent, and rules that tilt too much toward the risk of freeing guilty and dangerous people.

3. No, I am not going to help you pretend that the system we have now is rancid by dwelling on the miniscule number, relative to the number of criminal cases adjudicated, where there have been erroneous convictions.

4. Of course it's "easy enough for you to say" that the only thing that counts are such convictions, since none of your relatives has been butchered by killers who should have been executed but weren't, leaving them to do it again.

5. The reason people have to grow up is not that it's pleasant or happy-making. The reason is that the alternative is worse.

Posted by: Bill Otis | Mar 18, 2014 4:51:42 PM

So, tying the foregoing together, would people like Bill Otis, who seem to think we have to have faith in the system, take the position that innocent defendants should remain quiet at sentencing, even if doing so means the loss of a 2 or 3 point Guidelines reduction for AR? Or, are people like Mr. Otis simply too ostrich-like, when it comes to the subject of the conviction and sentencing of innocent people, to discuss the subject in a reasonable manner?

Posted by: xyz | Mar 18, 2014 7:08:49 PM

I'll place my vote for ostrich-like.

Posted by: Greg | Mar 18, 2014 8:07:01 PM

I'll add another vote in the ostrich-like column.

Posted by: J. Preston | Mar 18, 2014 8:13:05 PM

My position about what defendants, guilty or innocent, should say in court has been stated probably three dozen times, and will not change now.

Defendants, being human beings with moral obligations and responsibility for their words and behavior, should tell the truth. Period. Get over it.

As for ostriches, the true ostriches -- or hucksters, more correctly -- are those who try to sell us on the notion that innocent people routinely get convicted.

Anyone with experience in actually litigating cases knows this is a point-blank lie.

Posted by: Bill Otis | Mar 18, 2014 9:57:09 PM

bill nobody is saying the courts or the govt is perfect. Hell we're human NOBODY is perfect.

What we have a problem is when a problem is found we end up with a two-faced USSC who basically say that just because your innocent is no reason to set aside a jury verdict.

sorry I my book innocent trumps everything.

we have the same problem now with law enforcement. they have run rampant for decades and now expect it. Yes we all know the majority are just trying to do a good job and go home. But when that 5-10% that are nothing but thugs in a costume get caught. Are they punished ...rarely unless there is a massive media campaign. No usualy they are patted on the head till the heat dies down and then move on.

That is what is pissing us off and why officer shootings are going up and up and up.

Posted by: rodsmith | Mar 19, 2014 2:27:11 AM

Hernandez & Powell, 122 Yale L.J. 2358, 2365 (2013) ("Convincing even an innocent client to fight, and risk harsh punishment, can be difficult. Pleading guilty is the client's decision, whether or not he is actually guilty.")

Dervan & Edkins, The Innocent Defendant's Dilemma: An Innovative Empirical Study of Plea Bargaining's Innocence Problem (2013) 103 J. Crim. L. & Criminology 1

Bibas, Harmonizing Substantive- Criminal-Law Values and Criminal Procedure: The Case of Alford and Nolo Contendere Pleas, 88 Cornell L. Rev. 1361, 1382 (2003) ("Even if innocent defendants want to plead guilty, the law should not go out of its way to promote these unjust results."); Leipold, How the Pretrial Process Contributes to Wrongful Convictions, 42 Am. Crim. L. Rev. 1123, 1158 (2005) (supporting Bibas' statements regarding innocent defendants and plea bargaining).

The home page of the Innocence Project's website notes 312 DNA-based post-conviction exonerations since 1989, and that the average length of time served by those 312 exonerees was 13.5 years.

We have these statistics. We have countless law review articles about the problem of convictions of the innocent. And, we have Bill Otis claiming that those who raise concerns about convicting the innocent are hucksters.

Who is the huckster?

Posted by: J. Preston | Mar 19, 2014 10:33:21 AM

J. Preston --

You asked me what the supposed legion of innocent defendants should do at sentencing and I told you: Tell the truth.

Do you have a better suggestion?

I also asked some questions ill-suited to your partisan outlook, but that a mature person would need to answer:

Name the justice system in any civilized country, ever, that is or was infallible.

Name the justice system in any civilized country, ever, that does not have to make tradeoffs between procedural rules that tilt too much toward the risk of convicting the innocent, and rules that tilt too much toward the risk of freeing guilty and dangerous people.

Finally, don't call me a huckster, since I have a long litigation record that proves it's false; and don't call my wife a kapo or line up with those who do.


Posted by: Bill Otis | Mar 19, 2014 11:30:50 AM

Mr. Otis has issues.

Posted by: Sigmund Freud | Mar 19, 2014 11:53:57 AM

Freud --

"Mr. Otis has issues."

True. And I won almost all of them.

You?

Posted by: Bill Otis | Mar 19, 2014 12:44:42 PM

this is true bill!

"Name the justice system in any civilized country, ever, that does not have to make tradeoffs between procedural rules that tilt too much toward the risk of convicting the innocent, and rules that tilt too much toward the risk of freeing guilty and dangerous people."

Of course once this country went by the ideal that better 10 guilty go free than one innocent be convicted.

now of course that is in the trash bin of history like old Reagan liked to call it.

Posted by: rodsmith | Mar 19, 2014 3:19:10 PM

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