On the Defendant’s Acceptance of Responsibility at Sentencing

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.