01 November 2020

The Emotional Gambit and Jail

You'll recall that a few years back I tried to copyright the four reasons that no defendant can ever go to jail. BTW, all you defense attorneys out there are behind on your payments for their use; I figure most of you will have to sell your homes to make your payment by now. Anyway, over time I've come to realize that I've left out one other thing used by defendants in their attempts to avoid jail: The Emotional Gambit.

This epiphany came to me while I was watching a Korean show about their judicial/political system (about 25% of Korean shows seem to involve the judicial system) and the senior prosecutor quizzes a junior prosecutor about the things that defendants say which should never sway a prosecutor.

(1) "I'm sorry."
(2) "Please forgive me."
(3) "I repent."
(4) "I'll never do it again."
(5) "This is unfair."

Then he goes on to warn her (6) "The ones who cry are the most dangerous."

He's advising her before her first solo interrogation. In Korea prosecutors have more responsibilities than US prosecutors. They are tasked with interviewing suspects brought to them by the police and they can work out deals with suspects and victims which, as best I can tell, conclude the case without ever going to court. And, if the multiple Korean prosecutor television shows are to be believed (because we all know TV never get things about court systems wrong), no defense attorneys are involved at any point in that process.

It's a different world. Still, the advice above is something a US prosecutor should consider. So let's go thru the factors.

Crying is something most professionals in a courtroom will see thru jaundiced eyes. We've all too often seen crying as an attempt to manipulate the outcome of a court proceeding. Perhaps as often, we've seen it as a display of anguish at being caught and the fear of punishment (intermixed with the former purpose). On some rare occasions it even appears to be an actual display of remorse for the act. Even then, it is most often situationally prompted remorse. And before people start yelling at me for being a cynical prosecutor unable to recognize that people can be truly remorseful of their wrongful acts, ask yourselves a question: If the lady wailing away in front of the judge who is about to sentence her had never been caught would she be sitting home in her living room crying because she stole $1,500 worth of electronics from Wal-Mart?

Moving on, "I'm sorry" and "I repent" are more specifically expressed variations of the same thing: showings of remorse and refutation of the illegal act. These are basically subject to the same analysis as crying. Again, the most obvious purpose for the apology or refutation is manipulation of the court. To a lesser extent, it can also be seen as a display of anguish at being caught and the fear of punishment, although unlike crying verbal communications probably involve a greater level of manipulation over simple anguish. Again, betimes it appears that defendants are truly sorry and repent their act, but they still usually appear to be situationally prompted. The question to be applied here is the same for crying: If the lady proclaiming her sorrow and repentance in front of the judge who is about to sentence her had never been caught would she be sitting home in her living room with sorrow and repentance in her heart because she stole $1,500 worth of electronics from Wal-Mart?

The remaining three are more open attempts by the defendant to negotiate a better consequence. "Please forgive me" is a bald request for non-punishment. The implication of the request for forgiveness is that forgiveness comes with minimal punishment; it is a request to be treated as the adulteress when Jesus said "Let he who is without sin cast the first stone." As we all recall, no one was left to condemn her and Jesus refused to do more than place the woman on terms of good behavior: "Go forth and sin no more." To put this in more legally cognizable contract terms, the defendant is asking the court to gift her with minimal punishment without even offering consideration.

"I'll never do it again" is similar to "please forgive me" with a small variation. When a defendant says this, it is an open attempt to form a contract with the court. As part of this covenant, she offers to "go forth and sin no more" (be of good behavior). If the court accepts her offer she is asking as reciprocal consideration that the court only impose minimal punishment. 

Finally, "this is unfair" doesn't really concern a contract made by the court; instead it's about one enforced by the court. Assuming it's honestly made, it is a statement that the court's punishment violates the defendant's perception of a societal contract. This could be the defendant perceiving or wishing that the societal contract favors her freedom of action over all ("You can't deny me the right to carry a bazooka."). It could be the defendant perceiving or wishing that rights vested with her instead of another party ("I was going to inherit it in a couple years anyway"). It could be the defendant perceiving that the punishment is greater than a rational cost-benefit analysis would allow ("Five years? For this little charge?"). As well, beyond these more rational reasons; there are a number of less coherent "this is unfair" gripes by defendants which basically break down to the defendant expressing her distress at being caught and held to account.


Of course, it's seldom that any of these six occur without at least some of the others and the big four reasons a person can't go to jail. Most specifically, crying almost never occurs in a vacuum. It's almost always an addition to the other factors and, depending on your judge's proclivities, sometimes a multiplier. Along with the big four, these are all "I did it, but . . ." attempts to sway the outcome.

The most frustrating thing about all of these is that there are certainly people who are truly remorseful and who will never consider undertaking criminal activity again. The problem is that it is nigh unto impossible to separate the wheat from the chaff. Frequent flyers long ago figured out that if they rend their garments and gnash their teeth while wailing about their sorrow for their act they can get a better sentence from Judge X1. And they do it far better than those who are not accustomed to being in court and are somewhat overwhelmed by it all. Those whom we all know are putting on a show often do so far better than those who mean it.

Beyond the manipulators is a group that is as large and probably larger. These are the people I mentioned above who are situationally remorseful. While they are under the thumb of the court and facing sentencing they mean it. They are never going to do it again and they are extremely sorry that they did. They are going to turn their lives around and they mean it. And, having dealt with these people for years, I believe they mean it at the time. Then they get back out on the street. Months later, they're back in front of the court, once again extremely sorry for their act and swearing to the court with zeal of the converted that they will never do it again. And, I believe they mean it then too. It doesn't mean they won't be back in another few months or years in the same mode again . . . and again . . . and again. Lather, rinse, repeat.2

Finally we get to the truly bone deep repentant defendants. While I don't quite believe these are unicorns, I do believe it is incredibly hard for the judicial system to spot them. These most likely come in two flavors: (1) The one-timer, and (2) the out of proportion offender.

The One Timer is the lady who gets a DUI driving back from the office Christmas Party or the guy who shoplifts a book just to see if he can get away with it. If the offense is petty, this person is probably going to get a slap on the wrist and move on with their life.

The Out of Proportion Offender is the petty thief who stabs someone who jumped him, the lady who shot the woman she caught in bed with her husband, or the boat owner who's been told by the harbormaster eight times to tie his boat to the dock correctly and refused to do it resulting in the boat slamming into someone in a kayak and killing them. Here things are more difficult. The person has done an act with a result so drastic that it cannot be merely borne. A jury may nullify and refuse to convict a lady who shot and killed the woman she found in bed with her husband, but a prosecutor should not countenance the killing of a person unless it occurs upon threat of another's life (see "History" here for self defense in Virginia).



Every so often, there is going to be a person among the masses of defendants who is truly remorseful. Discerning that person is nigh unto impossible. Even when you believe a person is showing actual remorse, experience teaches anyone who has been in the courtroom for any period of time that it is almost certainly situationally prompted remorse and will produce little actual change in the person's behavior once she has returned to her life outside the judicial system. Obviously, it is the defense attorney's job to latch onto whatever real/fake/situational remorse his client shows and present that to the sentencing judge to the best of his ability. It's not as obvious that the prosecutor should always entirely discount a showing of remorse. However, a prosecutor should probably start with a fairly strong presumption against believing expressed remorse unless he can picture in his head the defendant being remorseful and repentant even if she'd never been caught and brought to court.  If he cannot, he should leave it to the judge to determine whether this lone defendant among the many is that rare gem of a truly penitent criminal.

1  Hopefully, no one out there who is a legal professional is foolish enough to believe that the frequent flyers don't know the judges just about as well as we do. The FF who wails away in front of Judge X will be stoic and calm in front of Judge Y because it just bounces off Y. Emotional appeal isn't the only thing we see this in. How often do you see d├ęcolletage in front of (female, professional, no nonsense) Judge Y as opposed to (old guy, wandering eye) Judge Q? Examples like this abound. Just because you have a piece of paper on your wall stating you can practice law doesn't mean you're the only one who can scope out the judges.

2  In a way, these are the most frustrating people to watch go through the system. You want to believe that if you could just provide these people with well paying, stable jobs they would become vested in society and stay on the straight and narrow. I'm convinced this would work for a fair portion of them, although only God knows what percentage. There's a reason a guy working a $60,000 a year job is less likely to shoplift from WalMart than the guy living off a government check. Of course, the problem is that most of the people who are situationally remorseful are going to go back out into a world with few opportunities to excel and lots of opportunities to fail.