On the Defendant’s Acceptance of Responsibility at Sentencing

by Jamison Koehler on April 15, 2011

Earlier this week, I caught the tail-end of a DWI trial in which Michael Bruckheim was representing the defendant. Bruckheim had attended portions of my last DWI trial in D.C., and I decided to repay the favor. I wanted to see him cross examine the same police officer who had testified in my case. And, recognizing that everyone has a unique style in addressing certain issues, I was interested in witnessing his approach to the breath test result.

As a former supervisor in the traffic unit in the Office of the Attorney General, Bruckheim knows his way around a DWI case.  He was calm, respectful, and cagey.  He used standard DWI cross-examination tactics mixed in with some creative approaches of his own. He was able to shift the focus from all the things his client did wrong that night to all the things that had been done right.  And he used the operator’s manual during the breath testimony to raise a number of questions as to how the breath test was administered.

At the end of the trial, the judge considered all of the evidence and found the defendant guilty of all three drinking-and-driving charges.

During sentencing, the judge told Bruckheim that he was struggling with the fact that the defendant had not accepted responsibility for his actions.  All I have seen, the judge said, is denial.

Since Bruckheim was standing with his back to the gallery, I could not see his face.  But he might have looked surprised. His client had not testified during the trial.  He had not made faces during the government testimony.  He had not denied a thing.  All he had done was to force the government – through his lawyer — to meet its burden of proof.

Bruckheim asked for a few minutes to consult with his client, and the court took a quick break.  When the hearing reconvened, the defendant offered a convincing apology for the behavior that led to the charges.  In the end, the defendant was spared any jail-time.

I understand the concept of rewarding someone for accepting a guilty plea.  Having taken responsibility for the person’s actions, there is a greater chance it won’t happen again.  The foregone trial also spares the government the expenditure of considerable resources.

But I struggle with this notion of penalizing someone who exercises his/her constitutional right to a trial. A friend of mine, a former prosecutor, would argue that, if the government only suspected the defendant was guilty before trial, there is no longer any doubt after a guilty verdict.  Why shouldn’t the defendant be penalized accordingly?  After all, by testing the strength of the government’s case through trial, he himself played a role in reducing uncertainty with respect to his culpability.

I have serious problems with this argument.

A Philadelphia judge once criticized a client for continuing to assert his innocence even after the client had been found guilty at a bench trial.  Having convinced himself at some point during the trial of my client’s guilt, the judge seemed offended by the defendant’s refusal to accept this verdict. He thus went to the higher end of the guidelines to sentence my client.

It is possible the judge was mistaken.  Innocent defendants are in fact convicted all the time, and I continue to struggle with the notion of a judge or jury as the ultimate arbiter of truth.

Six or so months ago I wrote about the malleability of truth at trial.  While I have since taken down this blog entry on the advice of Virginia bar counsel, I continue to believe that the objective truth is rarely, if ever, introduced at trial. The finder-of fact – be it a judge or jury – learns what happened not through direct observation but through the imperfect testimony of equally imperfect human beings.  Memories fade.  Perceptions skew.  Minds rationalize.  People have agendas.  And everything the fact-finder learns is shaped through manipulation by the lawyers, with each side attempting to push the finder-of-fact toward its version of the truth.  There are degrees of truth, and variations of the truth.  The verdict reflects nothing more than that version of the truth that was introduced on that day.

In other words, because I didn’t share the Philadelphia judge’s certainty is in his decision, I didn’t think he should punish the defendant for disagreeing with the verdict.  After all, of the three of us, it was only the defendant who was there that day.

In addition, a defendant who is found guilty after testifying in his own defense is in a double-bind.  Accepting responsibility during sentencing would require him to admit he lied on the stand, thereby subjecting himself to perjury charges and enhanced punishment.  Continuing to assert innocence prevents him from receiving more favorable treatment during sentencing.

Finally, penalizing the defendant for refusing to accept responsibility amounts in effect to double punishment for exercising his constitutional right to a trial.  The defendant lost the benefit of the plea bargain the moment the case was set for trial.  Denied mitigation, he is punished further when he refuses to accept responsibility during sentencing.

6 Comments on “On the Defendant’s Acceptance of Responsibility at Sentencing

  1. If Virginia bar counsel advised you to take down a blog entry “about the malleability of truth at trial,” and you acted on such advice, I’m probably not long for this profession based on many of my own blog entries. Yet, believe it or not, I believe everything I’ve written is protected by the First Amendment, and don’t go out of my way to court trouble, and do give some thought to whatever uncertain and slippery line might be out there in the ether. It seems the real danger area is appearing to call into question the “integrity” of a specific judge, which I try to steer clear of. The rules of professional conduct, at least in my state, forbid making a “statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.” Supposedly, though, we’re still allowed to criticize judicial decisions. But doesn’t any such criticism — to the degree it asserts the decision is contrary to the law and/or the facts — implicitly concern either the qualifications or the integrity of the judge(s) making the decision?

    This is truly awful: “A friend of mine, a former prosecutor, would argue that, if the government only suspected the defendant was guilty before trial, there is no longer any doubt after a guilty verdict.” A prosecutor has no business trying a case unless he himself is convinced beyond a reasonable doubt that the defendant is guilty. Rarely will a prosecutor have any more or any less doubt about the defendant’s guilt after trial than he had before.

    “Punishing” a defendant for refusing to “accept responsibility” by admitting guilt is completely out of line. It is, however, appropriate to “reward” a defendant who saves the state the trouble and expense of trial by pleading guilty. A guilty-in-fact defendant might internally be genuinely remorseful for what he’s done — but this laudable spiritual attitude doesn’t mean he’s morally bound to accept as a good thing the expiation of his sins the state has in mind for him. The state — quite appropriately — commonly calls into question the sincerity of any remorse expressed by the defendant at sentencing, and argues that the defendant is “sorry” he got caught. We’d all be better off if the “acceptance of responsibility” charade was taken completely off the table.

  2. John:

    The Virginia State Bar has an ethics hotline. They also offer to review things for you to assure compliance with the rules. In this case, I asked them to review my website. I was particularly concerned about my use of testimonials on the “attorney” page. They reviewed my entire site and got back to me within a day. They suggested language to strengthen the disclaimer on the testimonials. And they raised concerns about a single blog entry. I took down the entire entry rather than makes changes, even though it had been one of my favorites.

    Given my free speech, I’m sure this was done in an excess of caution. But, since not many people are reading my back entries anyway, it didn’t seem worth the risk of leaving it up. I am always so cautious/conservative in advising clients; I thought I should apply some of this same caution to myself.

    I have read your blog, and, yes, depending on the rules in Illinois, you do seem to skate much closer to the edge than I.

    I know that prosecutors say they are merely rewarding a defendant who pleads guilty or who otherwise accepts responsibility, rather than punishing him for exercising his constitutional right to trial. But, for the reasons I describe above, I just don’t buy this argument at all. And the judge’s statement at sentencing in the case described above only seemed to confirm this suspicion.

    Thank you for commenting.

  3. Mirriam:

    Again, I’m sure it was just the hypersensitivity of the staff attorney who reviewed the blog entry that day and I’m sure I could have pushed back if I wanted to, but it didn’t seem worth the hassle. That was right around the time our mutual colleague was having his site audited by the bar. Remember that? So, yes, that did have a chilling effect and, no, it doesn’t look like I would ever make a good First Amendment lawyer.

  4. I tried a DUI case about a 3 years ago in Alhambra, CA. It was not a good case. (High BAC, inability to complete FSTs, inappropriate behavior) I likely would have plead the guy but because he fought with a security guard who detained him prior the the police getting there, the District Attorney charged the guy with battery. Even though my client would plea to the DUI, the D.A. would not drop the battery. Went to jury trial, lost the DUI, not guilty on the battery. This is the result I expected. This is the result I told the judge that I expected. (Judge will often mediate plea bargain discussions). Snarky D.A. foolishly stated on the record that he was requesting 30 days County Jail for wasting court resources. Judge pointed out to him that a defendant cannot be punished for exercising his right to a trial. She also said to the D.A., “By the way, you lost the case- the defendant wanted to plead to the DUI.” Defendant got the standard no-jail first-time DUI sentence.
    The truth in evidence- I have won or hung my last 9 trials. I start voir dire with the question of all jurors. “Do you expect me to present a defense?” They all say yes. “Would you hold it against me if I didn’t ask a single question, make a single objection or call any witness”. The jurors always say: “That’s your job.” So I give the example of my client, on trial for robbing a liquor store. The store clerk comes into testify. The D.A. asks the witness to identify who robbed him. The store clerk looks out at counsel table, then scans the gallery and says: “Sorry, I don’t see him here, that’s not the guy who robbed me”. So, to the jurors, “If I don’t ask this witness any questions, have I done my job?” The answer is of course I have, because the D.A. has the burden of proof and my client has the presumption of innocence. “The D.A. has failed to establish identity”. This line of question educates the jurors that this trial is not an episode of Law and Order, and illustrates the misconception of my role as a defense lawyer. It also rationally lowers expectations if I really don’t have a defense. If I do have a good defense I am perceived as going above and beyond the call of duty. I usually let them know when I am appointed so I don’t come across as a hired gun.
    In closing argument I illustrate that I don’t know what happened because I wasn’t there, the D.A. wasn’t there, the Judge wasn’t there and you the jurors were not there. Although you are the triers of fact, you are not required to choose sides. This is not an inquisition. You can conclude that based on all the evidence by both sides that you don’t know what the truth is. So although a jury trial is a truth finding process, you are only required to ascertain truth when the evidence allows you do do so. If you can’t determine the truth, the defendant must be found not guilty.
    I then illustrate through the use of a chart, prepared in front of the jury, a way to look at the evidence, or rather, the defense and prosecutions version of events. If the prosecution version of events are not reasonable and the defense version is reasonable the verdict is not guilty. If the prosecution version of events are not reasonable and the defense version of events are not reasonable, you can’t determine the truth and the verdict is not guilty. If the prosecution version of events are reasonable and the defense version of events are reasonable the verdict is not guilty because the prosecution has not met their burden of proof and the jury instructions require that you reject the prosecution version of events. The only way that you get to a guilty verdict is if the prosecution’s version of events are reasonable, eliminating 100% of reasonable doubt, and the defense version of events are 100% unreasonable [I don’t use this argument when defense version of events is unreasonable]. The defendant is entitled to individual the decision of each juror. No juror can force another juror to come to a consensus verdict. Consensus is the antitheses of a juror’s duty to come to an individual decision. Consensus verdicts are misconduct.
    The defense doesn’t have to do a damn thing at trial, and the truth can never be ascertained, and you don’t have to agree with any of the other jurors. How could a juror ever vote to convict your client using those standards?

  5. Mr. Aragon:

    You don’t use a backlink so I assume you don’t write your own blog. From the quality of your comments here, it looks like you should. In the meantime, I’ll take advantage of your insights here. Thanks for commenting.

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