Sentencing Hearing

We’re talking about the sentencing hearing next on “Off The Record.” If you’ve gone through the court martial process or if you’ve entered into a guilty plea and you’ve been found guilty, you immediately go into the court martial sentencing process.

Topics discussed:

  • How Long Does It Take To Hear The Sentence?
  • Evidence In Aggravation
  • Cross-Examining Witnesses
  • What The Government Can Do
  • What The Defense Is Allowed To Do
  • Statements
  • Telling The Client’s Story
  • The Closing Argument
  • The Sentencing

How Long Does It Take To Hear The Sentence?

Unlike state court, there’s no presentence investigation. We don’t bind a client over for a sentencing hearing a month or two months later.

The military is expeditious. You can go into your sentencing hearing literally minutes after a verdict comes down. You may be reeling from a guilty verdict, but you immediately go into a sentencing hearing. As tough as that verdict may have been, you need to bury that emotion and get back in the fight because the fight isn’t over.

Evidence In Aggravation

If you went to a trial and you were found guilty, you may be no further behind than if you were to pled guilty in the case. At that time, the government is gonna be able to put on what’s called evidence in aggravation. So if it’s a sexual assault case, they’re gonna call the sexual assault alleged victim, I guess now the victim.

They’re gonna call her parents. They’re gonna call her sister. She’s gonna get up there and testify that she can’t look at men anymore, that she can’t be around men, that she can’t serve in the military anymore. She’s gonna testify how you damaged her life and made her life a living hell. You just need to be able to be prepared for it.

If it’s a financial fraud case, you’re gonna have people testify about the dollar loss. They’re gonna have you command [SP] testify that you’ve been a burden on them, you’ve been a poor soldier or a poor marine. The government is gonna get everyone possible to make you look like the worst human being possible. And you may have to go through this and endure this in front of your family, in front of your parents, in front of your loved ones who are watching this trial.

Cross-Examining Witnesses

However, we get to cross-examine these witnesses. So if the government calls a witness to testify in aggravation, we can cross-examine them. And so that crucible of cross-examination still applies. So if they go over the top or go over the edge, which they often do, we can put them back in their place through a cross-examination.

What The Government Can Do

The government can also put any documents and evidence basically showing how bad of a person you are, or whatever the aggravating factors are for your crime. They’re gonna present this to the finder of fact that the person that found you guilty or not guilty to make…to get the highest possible sentence that they can.

What The Defense Is Allowed To Do

On the defense side, we’re allowed to put in evidence of extenuating and mitigation, which means prior to trial we’ll have to have done all of our mitigation work. We’ll have to have done all of our work for sentencing and have witnesses lined up and ready to go to talk about how great of a soldier or a service member you are, or to show the mitigating facts of the case.

All of this gets put on in front of the finder of fact. So they’re gonna hear the evidence in aggravation and the evidence in mitigation.

Statements

Then the accused has the opportunity to make what’s called a sworn or an unsworn statement. A sworn statement is under oath. They take the witness stand and basically say their side of the story, say, you know, maybe they’re sorry for the events that they respect the verdict, or they show why they joined the military, or what happened.

It’s the sworn statement that they can put on. But understand that if you do a sworn statement, you can be cross-examined by the government or even asked questions by the members. So oftentimes, we don’t have clients put on a sworn statement in the sentencing hearing. Typically, they’re allowed to put on what’s called an unsworn statement.

An unsworn statement is a statement that’s given to the court or to the members that’s not under oath, and it allows the client to tell their story. And again, this goes into being a storyteller. You often have to tell a story of where the client came from, why they joined the military, what was the event that triggered this criminal activity, or what was the event that triggered this, and how did they overcome it.

Telling The Client’s Story

So you’ve got to tell a compelling story to the members so they don’t wanna hammer your clients and send them to jail for an extended period of time. So we’re still in the fight. We’re still fighting, and we’re telling our client’s story. Oftentimes, if there was a compelling story or a theme that we did in the main trial, we’ll continue that into the sentencing hearing.

The Closing Argument

After all of the evidence is heard we’re allowed to give a closing argument. So the government gives a closing argument. They’re gonna say how evil you are, how bad you are, they’re gonna ask you to go to jail for 1 year, or 10 years, or 30 years, whatever that happens to be, and they’re gonna just get indignant.

They’re gonna go and try to inflame the passions of the juror and get the toughest sentence they can possibly get. At that point in time, the defense attorney has the opportunity to give a closing statement. And this is often interesting because you might have been fighting in the trial for the last week or two weeks in front of a jury claiming your client’s innocence. And now you’ve got to get in front of that same jury or in front of that same judge, eat some humble pie, and then explain to the members why you should receive a low sentence.

Screenshot of videoIt’s really difficult to do. On one hand, you’re fighting for your client on the merits phase of the trial and immediately after, now you’re saying, “Well, give him a low sentence.” It’s tough to do. One of the things that we can often do is let the jury know we’re still fighting and that whatever happened in the trial that you had the absolute right to fight the case, you had a right to plead not guilty, and whatever there was in the trial, you can’t forget that.

And we can use that as mitigating circumstances. And you always have to keep going full speed 100%, because if the jury sees you start to give up on your client, or the defense attorney gives up on the client, they might do the same thing. And so the key in these closing arguments on sentencing is to find that story.

Maybe that’s the same story you told during the merits phase of the trial, find your client’s story and actually tell it to the members. And oftentimes, you can get amazing results on sentencing if you do that, oftentimes much better than if you would have pled the case. After the sentencing argument, the members or the judge, they’re gonna go back and deliberate, and they’re gonna talk about the sentence. They’re gonna figure out what the best sentence is or what sentence they believe is appropriate.

That can take an hour, that can take 10 hours, that can take days. And very similar to the verdict on the merits of the case, once they reach their decision, they write it down on what’s called the sentencing worksheet. They let the judge know that they’ve reached a sentence. They’re gonna call you back in the court, and it’s like deja vu, no different than you did on…when you got the verdict, and then go back into court.

The Sentencing

The judge is gonna get the sentencing worksheet from the senior member. He’s gonna review to make sure it’s accurate, and then he’s gonna give that worksheet back to the senior member. The panel present is going to stand. The judge is going to again say, “Accused and defense counsel, please rise,” then they’re gonna read the sentence.

And if you’ve continued to work hard, if you’ve continued to fight for your client, oftentimes we can get sentences which are much lower than had we pled a client guilty. But that is the final moment of the trial. Once the sentence is read, the jury is excused. We go over some of the post-trial and appellate rights with the client. The court is adjourned.

And if there’s any sentence to confinement, the client is immediately placed in hand and leg irons, and they’re immediately taken from the courtroom down to jail. You’re not gonna have time to spend with your family. You’re not gonna have time to say goodbye. It’s going to be immediate. Justice in the military is swift. So you have to be ready. You have to prepare. Not only do you have to prepare for trial, but you have to prepare for sentencing, and you can never give up.

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