A few weeks back there was a sentencing symposium in New York City. The panel included four federal judges, two from the Eastern District of New York and two from the Southern District of New York.
The judges at the symposium were all thoughtful moderates. It would have been edifying to hear from a harsh sentencer as well. Ironically the moderator, the Hon. Richard Sullivan, is a harsh sentencer but a smart and thoughtful one and it would have been interesting to hear what he had to say.
The big take away from the symposium though was just how thoughtful and conscientiously judges take sentencing and look for anything redeemable about a defendant to lessen the sentence. They are mostly looking for remorse and accountability, and when it is lacking they often used the phrase “he just doesn’t get it.” One judge used the example of a defendant saying, “yes, I hit her, but she had it coming!”
You have to appear before a judge humbly, hat in hand. You have to say to her that you are guilty, that you have no excuse for what you did, that you do regret it and that you want to apologize not only to your family but also to all the victims of your conduct. One judge said that defendants often apologize to their family but ignore apologizing to their victims.
When asked about whether there was a “penalty” for going to trial, all expressed, very sincerely, I think, that they would not consider that a factor. If you go to trial in the face of overwhelming evidence against you then maybe there might be such a penalty for wasting the court’s time. But otherwise it is a non-issue. If you have a straight-face defense, or an understandable reason for going to trial, like a ridiculously high plea offer, no judge is going to hold going to trial against you. Recently there was a trial of two Venezuelans who were relatives of the Venezuelan president, and while they got heavy sentences, they did not get the book thrown at them.
One judge said that the real negative of going to trial, is that she gets to hear some damaging evidence that would not have otherwise shown up in a written pre- sentence investigation. Bear that in mind. Also, all the judges agreed that sentencing hearings, where facts in dispute are heard before sentence is imposed, nearly always favor the government. So bear that in mind.
One judge made clear that if a defendant lied at trial, that would always be held against her because that is seen as an assault on the system, and judges will not tolerate that. Neither will exaggeration. Intellectual honesty is the hallmark of the process. It is actually the hallmark of our culture. There is nothing Americans detest more than lying.
One judge mentioned how disappointed he is when the government offers him no guidance on the sentencing and simply says formulaically that the court “should impose a sentence within the guideline range.” That argument rings hollow especially in New York City. One size does notfit all.
Judges are grateful to receive quality information of any kind coming from any source. It is why, they all said, they welcome hearing from the defendant and even his friends and family in court even after having received letters from them. Any insight to a defendant’s character and personality is appreciated. It is one of the few things the judges cannot get from books.
They are offended, however, by letters from people whose only value are their famous names or social rank. And letters that suggest that the defendants were framed or innocent is especially offensive. As a result, they urge defense lawyers to monitor the correspondence and any information that may get out that would adversely affect the defendant.
The judges also said they had no problem if defendants read from prepared statements providing the words were their own. One judge told of an instance where a lawyer typed up and copied the same letter and had everyone sign it. Not good. But judges understand that people get nervous speaking publicly and are perfectly happy to hear someone read from a prepared text. Everybody loves a good truthful story no matter how it is delivered.
The symposium revealed one important truth: judges really do care. They are not your enemy. Approach them in good faith, and you will be surprised how well you can do. That was the point that was made crystal clear at the symposium.
David and Johanna Zapp