My colleague Alan Ellis travels the country interviewing judges about the most (and least) persuasive elements of sentencing advocacy. In a recent article published in Law360, Mr. Ellis conducts an extensive interview with Judge Nancy Gertner. It’s an essential read for all criminal law practitioners. The full article can be accessed HERE.
The following are my top ten takeaways from this great article:
- Tell a Story! Judge Gertner knows that every client has one, and when told in a credible way by a credible advocate, makes a huge impact on the outcome of the case;
- A defendant must fully own their mistakes and say so in their own words;
- The “why” of a crime is “critically important” (see my last blog entry on the “3Rs of Sentencing Storytelling”);
- It is incumbent upon a lawyer to fully prepare his client to speak at the sentencing hearing;
- Any steps a client can take, prior to sentencing, to demonstrate sincere attempts to make amends for their crime is significant;
- Sentencing videos can be an effective tool of persuasion as long as they are done right (i.e. “not too slick”);
- Character letters will have limited effect if they feel like they are written by the attorney;
- Sentencing memos are essential to breathe life into 3553 factors; late filed objections and memos are a no-no — judges need ample time to consider your arguments, especially complex legal objections;
- Engage with the pre-sentence report writer at your earliest opportunity so that the PSR can be a “megaphone for the offender”;
- To the extent you can, come up with a PLAN for the defendant’s rehabilitation. It is important to show the judge why the client is unlikely to reoffend.
Again, the full article at Law 360 can be accessed HERE.
Alan Ellis is a past president of the National Association of Criminal Defense Lawyers, a Fulbright Award winner, and a criminal defense lawyer with offices in San Francisco and New York. He is the co-author of “Federal Prison Guidebook: Sentencing and Post Conviction Remedies.”