» Clients, Courts » No Harm in Asking, Right?

No Harm in Asking, Right?

I have a little list of things to do and not do that I give people who are going to speak at or write letters for a client’s sentencing. I pieced it together from various sources and have continued to add to it for the past three years. Clients’ families, friends, and employers tend to find the guidance helpful, and I often provide it to other defense lawyers when they ask. It isn’t anything special, but it covers most of the bases.

One section seems to hang people up more than anything else. It’s the section having to do with not making unreasonable requests, and it says this:

Be realistic. Do not ask for probation if it is a prison plea. If the minimum prison term allowed in the case is ten years, then only ask for ten years if that indeed is the best possible option given the circumstances. The judge probably has less power at sentencing than you think, and it reflects badly on everyone at the defense table when you make unreasonable demands. If you are so unrealistic as to ask for probation when the plea is prison-only, the judge is unlikely to give much weight to your recommendations about sentencing.

I can’t take credit for that portion, as I think it came from someone else, but it’s been so long I can’t figure out who that is. If you know, tell me and I’ll give credit where credit is due.

Anyway, I think that every defense lawyer has found himself or herself standing next to a client at sentencing and cringing as the client requests probation on a case where probation simply isn’t an option. I had one sentencing where the client’s family, one after another, begged the court to sentence my client to probation. It was a plea to no less than 3.5 years, and the client was looking at over 35 years if convicted. The judge asked each one, “you do know I can only give her probation, don’t you?” They each told the judge, “yeah, but there’s no harm in asking, right?” Finally, my client stood up and told the judge she really wanted probation. The judge, exasperated, looking at my client and asked if she understood it was a prison plea when she signed it. The client nodded and said, “yes, but you’re the judge, and I didn’t believe my lawyer when he told me you couldn’t do it.” The client got the lowest possible sentence anyway.

My little suggestions fell on deaf ears in that case, but it worked out in the end. I’ve found that it usually does when the biggest problem at sentencing is the client or other speakers or writers making impossible requests of the court. To some extent, it has me reconsidering that little portion of my list.

The reasons mentioned in the list for being realistic are basically two-fold. One has to do with making the defense look bad, and the other has to do with the credibility of the speaker or writer.

The first is only really an issue if the client ends up looking bad as a result. It may be embarrassing for it to appear as if I have misadvised someone, but at that point in any case, anyone who’s been paying attention to the case will see there’s been a thorough record made of what the defendant is facing and what the plea entails. Observers at sentencing might think badly of me, but the people that matter will not. I doubt that a client genuinely requesting what she wants, even though it may not be allowed under the plea, will reflect badly enough on her to hurt her at sentencing. I can’t see a court citing optimism, even if unrealistic, as aggravation. The it-reflects-badly argument doesn’t really do it for me.

The second reason also doesn’t seem so great to me. Credibility is important, but it isn’t like someone is lying when they speak from their heart at sentencing while requesting something the judge can’t do. Unrealistic and untruthful are very different things, and the judge isn’t really looking to the speaker or writer for input on the sentence itself. The judge is probably looking for mitigation in general. The client’s tragic life story isn’t going to lose much of its effect simply because the storyteller concluded it with an unreasonable request for probation. The judge can take from a speaker what he or she wants, leaving the rest. I doubt asking for probation at a prison-only sentencing really lessens the weight of the mitigation provided.

With the rationale for the tip falling flat, I’m left wondering if I should even bother including it. Sure, I don’t like feeling stupid in court, but is that any reason to prevent my client’s family and friends from saying what they really want? Is there really any harm in asking?

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7 Responses to "No Harm in Asking, Right?"

  1. Mike says:

    I rarely call relatives as witnesses at sentencings for these reasons:
    1. If they are really decent people, Judges are often inflamed at the collateral damage their no good relative, whom I represent has caused.
    2. Even worse, they decide to reargue the case or give the prosecutor, police etc. a piece of their mind.

    It is extremely helpful to have family and friends present at sentencing, so the Judge knows that person being sentenced will have some support, come what may. General rules: One employer or instructor is better than fifty relatives, and only argue incarceration’s effects on the children if the person being sentenced was emotionally and financially supportive of the children before the legal difficulty

  2. Glenn says:

    I know we practice substantially different areas of law. However, in my practice, credibility of the client is fairly important. I’ve had clients that have been proven wrong on more than one occasion (even though they believed what they said was true). Each time it is obvious that the judge and/or the trustee becomes much less patient with the client to the extent that they will conduct a far, far more thorough examination of the client if they deem that the client is lacking in credibility. This is often very damaging as trustees will often go after more than they otherwise would if the client was up front with them.

    In essence, I think that in my practice, the powers that be get very irritated by anyone they deem less than credible. So much so, that they will punish them for that lack of credibility.

  3. Matt Brown says:

    I should definitely add something about needing to accept responsibility to the explanation in the checklist, as I think you’re right. It does tend to be an issue in “serious” cases, especially those with repeat offenders. It’ll be a real tough sell (and one I’d rather not have to make) for the poor guy who finds himself looking at 6 to 15 on a personal possession of drugs case though…

  4. Andrew Becke says:

    I think there is a personal injury corollary to this that holds water as well. When closing argument time comes around, some plaintiff’s lawyers think you should ask for a big number. At the Arizona Trial College, a very good plaintiff’s lawyer said to ask for a reasonable number, or better yet, don’t ask for a number at all. It is gut-wrenching to leave it all in the hands of a jury, but if you say “do what you think is right,” you sometimes get a better result than you otherwise would.

    I also chatted with a friend recently who was on a civil jury. They decided to award no damages, even though they thought the case was worth something. Why? Because the plaintiff’s lawyer had asked for too much. If he had asked for $20,000 (or even $30,000), they would have given him $20,000, but since he asked for $120,000, he got nothing. I imagine judges hear all day long from people who think their relative/friend should get the minimum. Maybe by making the argument for leniency, but asking the judge to do what he/she thinks is right, you might get better results.

    Or, maybe not.

  5. Andrew (the other one) says:

    +1 to what Scott said.

    Also, I imagine the defendant’s record plays a large role. A defendant with no history asking for probation probably comes across as slightly ignorant or naive, and I imagine many judges would give that a pass (aside from the issue of possibly not looking contrite enough). However, I can see a judge coming down hard on a frequent-flier who asks for probation as a way of sending a message.

  6. Jennifer says:

    I agree with SHG. Most of the judges I have encountered put a lot of stock in “taking responsibility.” If client or family stands up and talks about how they didn’t do it, or it was someone else’s fault – or they ask for an impossible sentence – then the judge reprimands them for not “taking responsibility” or not taking it seriously, and gives them a tougher sentence.

  7. shg says:

    A thought to consider: By asking the judge for probation on a serious case, it suggests to the judge that the defendant hasn’t come to grips with the seriousness of his/her actions, doesn’t appreciate his/her wrongfulness and is in need of a more significant deterrent to make clear that they cannot engage in criminal conduct in the future.

    The reason your explanation is appropriate is that it conveys a message to a judge that may, not will, but only may, suggest that a stronger message needs to be sent than the one originally intended. Acknowledge and contrition are always appreciated at sentence. The desire to get off easy, not so much.

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