This is your opportunity to speak directly with the judge, a crucial moment in your hearing. Judges are “…looking for remorse and insight as to why you did what you did and what you are doing to ensure that it doesn’t happen again.” I hope you find this video helpful.
Judges want to hear from you – not for your attorneys. This is your moment, bake the best of it; you may influence your judge in your favor.
a
By now, the judge has already read your Presentence Report and hopefully your Personal Narrative, where you’ve explained how you arrived at this point in your life, standing before the court today. You can show the court that you take responsibility for the harm you’ve caused your victims, that you’re committed to making things right, and that you’re determined never to return to this courtroom. This is your moment to make a strong impression and humanize yourself to your judge. Your Allocation can be provided in written or written format and in video format 1-2 weeks before sentencing.
Sentencing Memorandum
Judge Scola notes that sentencing memoranda are the first opportunity for lawyers to make a positive impression on him. “I am very impressed with lawyers who show legal advocacy in their presentence memorandum on disputed guideline issues. I appreciate lawyers who give me everything I need well in advance of the hearing.”
The Sentencing Memorandum is written by your attorney and provided to the court approximately 7-10 days before the day of your hearing. After reading several examples of your attorney’s writing style, you have both agreed on the final message of your memorandum.
Depending on the number of “Character” Reference Letters, the best (3 or less) have been attached, summarizing their common theme in the Memorandum, then noting that there are (for example) another 27 that you have provided to your Probation Officer. They have all been reviewed to ensure that none will come off as insulting to your judge. Also attached is your Personal Narrative, Release Plan, and possibly your Allocution, depending on how nervous you are or will be at the time. If needed, the Allocution can also be in Video format, and if financing is an issue, a smartphone can be used. What Federal Judges Want to Know at Sentencing.
Judges across the country have been interviewed, and here are their thoughts – ‘From the Bench.’
3 JUDICIAL VIEWS FROM THE BENCH
As you read the Judges’ views, you’ll see they prefer to hear from you directly, through your Narrative and Allocution, rather than your Attorney.
Judge Xinis has expressed a dislike for sentencing memos that appear to be copy-paste jobs. She believes that simply citing legal precedents without providing relevant information about the defendant does not serve the memo’s purpose. Instead, Judge Xinis prefers that lawyers explain why a variance is justified. She also wants lawyers to start with the offense and the defendant’s details upfront, as she is interested in the facts of the case.
Experienced lawyers provide me with information about the 3553(a) factors and explain why a deviation from the guidelines is warranted. If a case involves excessive punishment, they elaborate on the legislative history or the U.S. Sentencing Commission history behind the guidelines, if such exists. Additionally, they clarify how a guideline sentence could undermine the community’s respect for the law.
Judge Xinis is a dynamic and engaged judge known for her active involvement in the proceedings. She takes pride in asking many questions and welcomes live character witnesses to the court. Judge Xinis is particularly interested in live testimony from mental health professionals and is known to engage them on specific points in their report. She believes that lawyers can significantly impact the sentence by presenting a solid argument in court.
She encourages lawyers to present a compelling argument on why a prison sentence should not be the default sentence and what sentence would be sufficient but not greater than necessary. Judge Xinis is committed to ensuring a fair and just trial, and her passion and dedication to her role is evident in every case she presides over.
Judge Scola notes that sentencing memoranda are the first opportunity for lawyers to make a positive impression on him.
What makes a positive impression on Judge Scola?
- “…good legal advocacy in their memorandum, particularly as to disputed guideline issues,”
- …lawyers who get him everything he needs. in advance of the hearing,
- …suggesting that you have five or six good character letters, “put in the sentencing memorandum, quote from them, and attach them as Exhibit. A.
- Put the rest in another exhibit.”
Pet peeves.
- Lawyers who,
- …do not submit memorandums or submit them on the eve of or submit poorly prepared ones.
- …give him boilerplate citations
- …ask for ridiculously low sentences.
- …don’t prep the defendant or character witnesses before the hearing;
- …don’t interrupt their clients who, during allocution, start digging a hole for themselves, and
- …forget that the court is the audience and put on a useless show for their clients, family, and friends.
Most judges, including Judge Mehta, consider the failure to submit a sentencing memorandum as a missed opportunity for legal advocacy. This document is of utmost importance as it provides an opportunity to explain why the defendant committed the crime and demonstrate that they have undergone a positive transformation since the offense. It is also a chance to showcase the steps taken toward rehabilitation and assure the judge that the defendant is less likely to re-offend. For instance, individuals who have successfully overcome substance abuse addiction demonstrate to Judge Mehta that they possess genuine strength of character and are less likely to commit crimes again.
Live testimony is an essential aspect of a case, particularly when it comes from mental health experts. Judge Mehta finds it helpful because it allows him to question the witnesses directly. He also prefers that character witnesses speak in person rather than send a letter. Notifying Judge Mehta’s chambers several days in advance is all that is required to request live testimony. Judges agree that when evaluating cases, both live testimony and data and statistics from similar cases, including those related to mental health, are crucial.
It is highly advisable, particularly in complex cases, to submit sentencing memoranda and letters early on, according to Chief Judge Beryl Howell of the U.S. District Court for the District of Columbia in Washington. To ensure a thorough review, it is recommended that these documents be submitted several weeks before the sentencing date.
Judge Charles R. Breyer of the U.S. District Court for the Northern District of California in San Francisco, who is also the vice chair of the Sentencing Commission, expressed concern about lawyers who fail to realize that they can request a recess to speak with their clients if they begin to play the victim or blame others during allocation.
Sentencing the White Collar Offender: A View From the Bench, July 9, 2015, Alan Ellis
When preparing a sentencing memorandum, it is important to minimize the use of citations. Refraining from quoting or citing Booker, Kimbrough, Gall, or the 3553 factors is recommended. Rather, an effective alternative is to create a sentencing video. This approach can save time and compellingly showcase the defendant’s regret and personal connections through well-spoken character witnesses. It is also crucial to own up to the offense and express sincere remorse, emphasizing that the defendant is typically a responsible and productive member of society who made an uncharacteristic error.
Point out instances of disparity by showing what sentences other judges in the same district impose on similarly situated offenders in similar cases. Use data from the Sentencing Commission, including national data and statistics, i.e., Interactive Data Analyzer (IDA). Judges are more likely to follow the sentencing patterns of their peers in the same district, state, and circuit. Finally, consider starting a restitution program. Even a small amount is better than nothing.