Accepting responsibility and expressing remorse for one’s poor conduct
is a healthy way to operate in life in general. We have all had the experience
of having to own up to a mistake and of having to convey an apology to
someone we have mistreated. One’s ability to do this is part what
makes a person a healthy, responsible adult. Being willing to make amends
and express sorrow for one’s misdeeds is even more important in
the context of a sentencing hearing for a criminal offense.
An extreme example of this principle was highlighted by the conduct of
a criminal defendant who is on trial in a German criminal court. While
German criminal procedure is entirely different than American criminal
procedure, certain fundamental principles still co-exist. Under both systems
a person accused of a crime has an opportunity to address the court and
share their thoughts and feelings. Similar to a sentencing hearing in
an American courtroom, oftentimes many German criminal defendants use
this opportunity to express remorse and sorrow for their conduct. This
is almost always a good idea for many reasons. The recent German case
took a dramatic turn las week when a notorious defendant pointedly declined
to express remorse for his participation in mass murder.
Oskar Göning served as a 22 year old member of the SS at Auschwitz-Birkenau
in 1942. During the hearing he asserted that his primary job limited to
confiscating money and other valuables from recently arrived Jewish inmates.
His expression of remorse for his involvement in the administration of
the death camp was tepid at best. Many times it is far better for a criminal
defendant to say nothing at all than to address the court and express
a half-baked, insincere expression of remorse. Minimizing culpability
when it has been clearly proven can result in disastrous consequences
for a criminal defendant. In this case, Gröning was only prepared
to admit that he through his activities; he did “contribute to the
functioning of the Auschwitz camp.” He was in his words: “not
a perpetrator, merely a small cog in the machine.” Not exactly an
overwhelming expression of sorrow and horror for what he and his SS cohorts
did to untold numbers of innocent men, women, and children at the hellish camp.
In preparing a client for his or her criminal sentencing hearing, an effective
and conscientious criminal defense lawyer will always canvass the client
and carefully review what the client would like to say. While many clients
have great ideas for sentencing statements, others have messages which
are inherently self-destructive. The inflammatory nature of some client
proposed sentencing statements, from blaming an innocent victim, to accusing
the Court – absent any evidence whatsoever – of racism or
other misdeeds can be, and often is, unbelievable.
That is why it is absolutely essential that conscientious
criminal defense counsel carefully review and discuss every proposed client sentencing statement.
To ignore this essential practice is to create a situation where a judge
is instantly alienated by a client’s statement, changes his or her
mind at the sentencing hearing, and imposes a stiffer sentence than was
previously decided upon.