11 August 2009

Prosecution Argument at Sentencing

In Virginia after a defendant is found guilty of a crime there is a jury sentencing hearing and, of course, argument from both sides as to what the appropriate sentence should be. Here's my sentencing argument from my jury last Friday.


Thank you, Judge.

Ladies and gentlemen, there are generally four reasons we put somebody in prison or jail. The first is what everybody calls retribution, basically just punishment. The second is to keep them away from people, to keep them from being able to do anything. The third is to teach the lesson to other people; they see what happened to somebody and they don't do it themselves. The fourth is rehabilitation. I'd ask you to keep all these in mind when you go in the back and try to decide all this.

Now I'm going to tell you, I don't know what this ten months in Texas was. The conviction records I'm handing up to you are all from Virginia. As the defendant himself testified, apparently if you commit a felony in Texas and you do something right, they take it off your record. I don't know how that works; I'm a lawyer in Virginia, not Texas, but apparently he spent ten months in jail in Texas. So, I don't think, to be honest with you, that rehabilitation is going to happen. You may disagree with me on that and that's you privilege. I really don't think going to jail or prison is going to rehabilitate him.

So, the questions then come down to, if you're a person who believes in straight punishment,what punishment's appropriate. And you should weigh what both Dad and Step-Mom have said. And you should also weigh the fact that he's been to jail for ten months in Texas and then came up here and did this. So ten months didn't stop him. So, you weigh his prior record and everything in and you might think how much punishment he's due.

Stopping him from doing something like this again. Well, obviously as long as he's in jail or prison he's not going to be doing this again. How long he needs to be away to accomplish that, again I leave to you.

The last thing, of course, is setting an example for others. You know, a lot of people believe in standing up here and banging on the table and saying "Send a message! Send a message!" Well, I'm not going to feed you that line, because this is a family thing. Now, whatever happened in Texas or his drug possession charges, those might have been send a message charges. This is family and as much as I think he needs a stiff sentence, his family has asked for less.

I think, and I've tried any number of juries in my career, I think personally that finding guilt or innocence is the easier part of the trial. Setting an appropriate sentence is incredibly difficult and I don't know if we ever get it 100% right. Like I said, my thoughts would be to ask you for a lot of time. 10 months didn't work; my thoughts would be to ask for more than that. His parents, his father and step mother have asked you for less than that. Balance all that in, ladies and gentlemen.

There are different ways that different people think punishment should be set. I've heard people stand up and say that for every $100 stolen a month should be given in jail - that would be 15 months in this case. I probably would have asked for, in this case, two years, but that's another issue.

I just ask you to take serious thought as to what good you are going to do the community through this sentence and please do your best with it. Thank you.

As you might be able to tell, we don't get the over night break that the prosecutors in Law and Order always seem to get in order to put their arguments in proper order. It's pretty much extemporaneous exposition and every time I read one of my arguments I see errors, things I forgot, and things that don't make sense when you just read them. Still, at least when I was in the moment the argument seemed to be flowing well and connecting with the jury (although, for all I know, they may have thought me an idiot and ignored everything I said in their deliberations).

1 comment:

Child Custody Lawyer said...

This account of yours is incredibly perceptive and humble. It sounds like you're a lawyer who is deeply engaged with each and every case and does not merely strive after a conviction for the sake of it. As far as figuring out how long a sentence must be, I think that, despite the immense challenge it presents, depends heavily on the nature of the individual and his incarceration.