Judges love to keep us in suspense.
Before announcing a verdict or a sentence, they like to give us a detailed description of the reasoning behind their decision. They say “on the one hand” and “on the other” quite a bit. This is because they want to document that they considered all the angles.
This can be excruciating. After all, the decision they are about to announce has life-changing consequences for the defendant.
I assume judges are concerned that if they announce the verdict or the sentence first, no one will pay attention to the reasoning that follows.
A “not guilty” verdict often leads to an outpouring of cheers. Not many people will pay attention to what comes next.
This leaves us looking for clues before the decision is announced. This is particularly true when dealing with a long-winded judge.
I have found, for example, that it is usually a good thing when the judge begins with facts and arguments that do not lean your way. These points need to be acknowledged before they can be dismissed.
Conversely, you should be wary when the judge begins the allocution by describing the strengths of your case. It is particularly worrisome if the judge compliments your lawyering.
In those cases, you are simply waiting for the “but” that is about to follow.
There is another hint of what is to come with respect to sentencing decisions: Are there U.S. marshalls in the room? Even worse, do U.S. marshalls quietly appear from the back of the courtroom during the proceeding? In that case, you are looking for other explanations as to why they might be there.
I learned this the hard way when I first started to practice in D.C. My client and I were awaiting sentence in an empty courtroom gallery. The judge was at the bench. The prosecutor and court clerks were all at their desks.
But nothing was going on.
This continued for at least 10 minutes. I was about to query the courtroom clerk: Was there a reason our case was not being called?
Things became clear the instant the U.S. marshalls stepped into the room. My client was in fact taken into custody after the hearing. I have been checking the room for U.S. marshalls ever since.