It’s the big day – sentencing. Your shoes are shined, your suit is pressed, your arguments are ready. You step up and deliver the sentencing pitch of a lifetime. Cue the violins for your great, sad, sympathetic presentation: “He has children at home that need him.” “He has a great job he will lose if you send him to jail.” “He is battling addiction.” “He is struggling with mental illness.” “He was abused.” The judge listens, nods her head, takes it all in. You think, “I’m killing this.” You have grand dreams of victoriously popping through the courtroom doors, client in tow, on your way to check in with his new probation officer. You hold your breath as the judge opens her mouth to pronounce sentence and… whammo. The next thing you know a deputy is loading your guy onto the prison bus. How could this be? Is the system that unfeeling? That unfair? Maybe. Then again, if you are not feeling the love at sentencing, it may be time to take a closer look at how you are approaching the process and open yourself up to the possibility that there may be a better way. Yes, Monday morning quarterbacking can be a drag. I don’t even like football! Maybe we should just call this a “debrief”, then. In any event, these five questions will help you examine your process and move the ball closer to the goal next time around:
1) Was I Late To the Party?
When is it time to start developing your sentencing mitigation story? The minute you get the case! No matter how talented you may be, the overwhelming odds are that your client is going to be sentenced for something, most likely after resolving the case with a plea bargain. It’s time to embrace that cold, hard, truth and plan accordingly. Do what needs to be done to defend your case — but never take your eye off the nearly inevitable sentencing ball.
2) Did I Dig Deep To Mine For Story Gold?
It is our job to understand the truth of our clients’ suffering and communicate that truth to the decision-makers, in all its raw emotion. How do we convince a judge or jury to see the world through your client’s eyes, to walk a mile in their shoes, when we have not done that hard work ourselves? Put in the time and build the bonds of trust. Only when you forge the bonds of absolute trust will your client open up and give you the good stuff. You will learn things about him you cannot even imagine – and you can use it to develop a powerful and persuasive sentencing story. This means more and longer visits with the client than you might be used to. It means talking to him about his life, not just the charges. It means making a few extra calls to the family so they know you actually care and are out there working hard on the case. Surround yourself with the right team. Bring in skilled investigators, mitigation specialists, psych professionals, and other experts to help connect with the client and his truth. There could be a treasure-trove of documentary evidence out there such as school records, CPS records, psych records, etc. You need great people with the skill to track all of this down. Then you need great people to make sense of it all and help you weave it into a coherent, cohesive and dynamic sentencing story.
3) Was I Playing Offense?
From the moment our client enters “the system” someone else has total control of their story. Whether it is in the police report, the charging documents, or the pre-sentence report, the story is always the same – he’s a criminal and we are the heroes for catching him. And so there your client sits, level after level, riding the rapids of justice, holding on for dear life and hoping the raft doesn’t ram any rocks. Just because you are defender does NOT mean you should always be on the defense! We must never be content to sit back and let others control the narrative. If you have done your homework and built the bonds of trust, you free yourself form the often pointless exercise of trying to chip away around the edges of the government’s story of guilt. Instead, you will have all the raw materials to build an independent, credible narrative that will lead the judge to the right result.
4) Did I Effectively Communicate Both the Factual and Emotional Truth of the Sentencing Story?
Here’s where things get tricky. When we talk about telling a “story”, the skeptics automatically assume we are spinning a yarn; brewing some fictional concoction of snake oil and frosted turd cupcakes. No! I study story and employ time-tested story techniques as a means to effectively advocate for my clients, not to create fiction. Story is the way we transcend our differences and find commonality in our shared humanity. Winning at Sentencing With Theories, Themes, & the Creative Demonstration of Truth, The Champion, March 2017. Story teaches us truths about life and how we live it. I get it. This is the part where you shut down and say, “Yes, the truth is, he did it. So what am I supposed to do with that?” Hey! I know he did it. More importantly they know he did it. “He did it” is the beginning of the story, not the end! Tell me a story about why he did it – one that makes the decision maker think “Wow, if I were in his shoes, I may have done the same thing.” Tell me a story about why he is guilty, but not nearly as guilty as the government claims. Tell me a story of rehabilitation or redemption, and why he will never ever do anything like it again. I promise you – if you look closely enough, you will find one or more of these stories in virtually every case.
5) Was My Presentation Creative, Or Just Too Clever By Half?
Remember the definition of insanity – doing the same thing over and over and expecting different results? By that measure, many of us are one beer short of a six-pack. Judges have seen and heard it all. Sometimes, they need a wake-up call to know that your case is different. The way we do that is with “outside of the box” methods of sentencing advocacy. Start by looking at your pleadings, especially your sentencing memo. Did you even write one? If so, was it heavy on useless boilerplate caselaw, and light on story? Have you ever considered sprucing up your memo with photographs that add layers of emotional depth and credibility to that story? See, “What Costs Nothing, Takes No Time, and Will Substantially Increase The Persuasive Power of Any Pleading?” How about a PowerPoint presentation or some other kind of in-your-face visual aid? What about a nice, colorful graph, as big as an elephant, with sentencing statistics? (Check out this great resource: sentencingstats.com) Some lawyers look outside the case to literature, film, plays, works of philosophy or religion for the absolute perfect analogy. That can work too, as long as there is a powerful thematic tie-in to a tightly constructed sentencing Theory. See, Supra, Theories & Themes Article. Congratulations for making it this far in this obscenely long blog entry. Tell ‘em what they won, Bob! A shameless plug!! This is the part where I tell you that in some cases, the story is far better shown, rather than told, with a compelling sentencing mitigation documentary. This has been my area of expertise in legal practice for over a dozen years (visit our website for info and samples). Done well, there is no better way to reveal the humanity of your client and the rightness of your cause. When we get creative in our cases, we walk a fine line. There is a difference between “creative” and “clever”, and “clever”, in this context, rarely wins the day. This is not about us, our big egos, and our theatrics. Are you quoting Shakespeare so the whole courtroom knows how learned you are, or because it is the ultimate creative demonstration of the truth of your sentencing argument? “Clever” typically has the opposite desired effect, by pulling focus away from your client and their story.
Ok Team, Let’s Huddle Up For One Last Pep Talk….
If you were motivated to read this, I’m guessing you may still be tender and bruised from a recent sentencing beat-down. I know we can’t win them all. But we can win more. Remember, the sentencing process is about little more than engagement and elevation through a good story well told. Our goal is to allow the decision makers to look closer, check their pre-conceived notions at the door and relate to our clients as if they were their own sons and daughters. It’s called empathy, and it is the beating heart of everything we do. I’m not saying it’s going to be easy, but you don’t walk this road for easy, folks. You walk it for justice.