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“We, the jury, find [your client] guilty as charged.”  Happens every day.  Typically followed by a sentencing hearing–often within minutes of the verdict–at which time the lawyer reflexively switches to different programming.

The guilty, of course, suffer no harm from their lawyer’s instantaneous, post-verdict concession of guilt.  Judges are not the least bit offended by the abrupt turnaround.  On the contrary, they generally appreciate lawyers who “move on” quickly.  Judges assume that defense lawyers were just doing their job when they first created the illusion of innocence on behalf of their now-indisputably guilty client.

For the innocent client, however, this moment represents yet another harrowing free-fall into the abyss.  

Wait a second?  Is my lawyer actually telling the judge that I’ve learned my lesson?  That I feel bad for what happened to the victim?  That this behavior is out of character for me? Why is he acting like he knew I was guilty all along?  Did this guy ever believe me?

I witnessed this recently in court.  Co-counsel joined in my client’s demand for a hearing on our clients’ actual innocence and their trial lawyers’ ineffectiveness at trial.  Moments later, at the sentencing hearing–after the court refused to give either defendant the opportunity to present evidence of ineffectiveness–co-counsel essentially conceded his innocent client’s guilt when the lawyer assured the court that his client had learned from this crime and would not likely commit the same offense in the future.

Granted, we were in front of a judge whom most defense lawyers avoid whenever possible.  And, one common strategy some defense lawyers employ when dealing with a difficult judge is to placate the court as much and as often as possible.  This particular judge has a reputation for harsh treatment of defendants and some lawyers appearing in front of her actually believe their innocent clients will fare better if they pretend to take responsibility for the crime.  Some might argue that, in that particular setting, the lawyer is actually helping his innocent client by conceding guilt.  I’m not one of them.

Yes, it is true that a sincere showing of remorse and a willingness to accept responsibility at sentencing can impact the outcome.  Last-minute manufactured claims of remorse from a person, who, just seconds ago, steadfastly maintained his innocence, however, have absolutely no mitigating value, primarily because they simply do not ring true.  No judge–especially one with a reputation of being unfair to defendants–is going to fall for this belated statement of contrition.  The words only provide the judge with yet another reason to think the worst of your client.

Moreover, the lawyer should know that it is legally and morally wrong for the court to demand a showing of remorse from someone asserting innocence.  As the California Supreme Court explained in People v. Coleman (1969) 71 Cal. 2d 1159:

It is fundamentally unfair to urge, as was done here, that a defendant’s failure to confess his guilt after he has been found guilty demonstrates his lack of remorse and that therefore such failure should be considered as a ground for imposing the death penalty. Even after he has been found guilty, a defendant is under no obligation to confess, and he has a right to urge his possible innocence to the jury as a factor in mitigation of penalty. [Citation.] A defendant would be placed in an intolerable dilemma if his failure to confess following conviction could be urged at the trial on the issue of penalty as evidence of lack of remorse.

Some might defend the practice of accommodating an unreasonable jurist by pointing out that if you listen carefully, in most instances, the lawyer never says his client is factually guilty or even that the “innocence defense” was a ruse.  Rather, his implied concession of guilt is just lawyer speak–carefully crafted to massage the judge’s ego in an effort to get a slightly reduced sentence.

Same difference, I say.  Any time a lawyer does anything to undermine the claim of actual innocence, he has just made it easier for the already skeptical judge to convince herself that your innocent guy is actually guilty.  The client’s claim of innocence–and the record on appeal–has now been sullied by his lawyer.  And for what?

In this case, it turned out the lawyer’s strategy (assuming it was strategic and not reflexive) did not help his client, as he ended up with the longest sentence of the three co-defendants.  It remains to be seen whether it will hurt his client on appeal.  Will the appellate judges (or their research attorneys) feel more or less troubled by a conviction in a case where the defense position on innocence flip-flops like pancakes on a griddle?

Meanwhile, this innocent man sat behind his lawyer and cried silently.  I watched the tears roll down his eyes and tried to imagine what he was thinking in that moment.  How could any of this make sense to him?  Was he wondering what action he might take to correct these misstatements?

He was not asked to speak and he did not request the opportunity. Surprisingly, most innocent defendants will NOT take the initiative to reassert their innocence at this juncture.  Rather, they sit there in stunned silence as the judge pronounces the sentence, perhaps unaware of the tremendous value of an eloquent allocution–even if only in posterity.  As the United States Supreme Court recognized:

The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.

When the innocent have the opportunity to speak from the heart–and the time to carefully consider their remarks–their protestations of innocence can be quite inspired.  Consider, Ron Cotton’s unusual, melodious allocution following his second wrongful conviction!

Perhaps they still believe that their lawyer knows better than them.  Or, perhaps, the mockery of justice unfolding before them is too much and they simply refuse to take a part in it any longer.

Left unchecked, though, the innocent client is now saddled with an ambiguous record on his claim of innocence.  The lawyer, in  trying to accommodate the trial court, has undermined the perception of his client’s actual innocence on the record.  One of the most powerfully compelling features in most exoneration cases are their persistent and unequivocal protestations of innocence, often spanning decades.

It makes sense to us that the innocent would maintain their innocence.  Likewise, it would give most of us reason to pause if a defendant were to vacillate on the question of his innocence.  We expect consistency on this point.  It stands to reason, then, that appellate court judges and their research attorneys may be swayed–consciously or subconsciously–by an ambiguous record of innocence, even if not directly from the client’s mouth.

At best, lawyer speak that treats actual innocence as a malleable stage prop for the benefit of the performing lawyer only serves to muddy the water.  At worse, it runs the risk of encouraging a reviewing court to more quickly discount claims of actual innocence.

Suggestions for Lawyers with Innocent Clients:  

Priority #1: No fleeting allowed!  Maintain your credibility.  Do NOTHING to undermine your client’s innocence.  Stick with the game plan.  Buzz words: persist, maintain, steadfast, unwavering.  There are many honest and helpful statements that can be made on behalf of your innocent client at sentencing, without resorting to perverted advocacy invented in hopes of appeasing an unreasonable jurist.  If you’re not feeling up to the job, turn the mic over to your client and let him have a stab at it.

Suggestions for Innocent Clients with Mediocre/Misguided Lawyers: 

Priority #1: Don’t go silently.  Stand up and be heard.  Speak from the heart and trust that one day someone who cares will read it.

Suggestions for Innocent Clients With Good Lawyers Who Continue to Work Together as a Team United in Purpose: 

Incorporate Innocence Into the Sentencing Strategy:  Plan for it.  Actual innocence does not evaporate with the pronouncement of guilt.  This conviction is unimaginable mistake, a terrible travesty; treat it as such.  Now is not the time to throw in the towel.  Work as a team to encourage the discovery of truth.  The sooner you start, the sooner others will join you.

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