Jason Tohtz Sept. 14, 2020

Scary Stuff

If there’s one thing you and I and everyone else hates, it’s admitting mistakes. Not that I’ve ever made any. But I presume that if I did, I would hate admitting them. After all, to admit a mistake is to drop your shield, to give up control over your own fate: when you admit a mistake to someone you imply your submission to punishment by that person and anyone else they decide to tell, and the only limit on the punishment is whatever kindness survives, like a cactus in the Mojave, within your punishers’ shriveled black hearts. Admitting mistakes obviously deserves a place in the menagerie of great human fears along with heights, sharks, and reaching into the garbage disposal to get a spoon that fell in there, but what is less obvious is how this fear can affect a criminal case.

You Be the Judge

Let’s switch tacks. Put yourself in the place of a judge. You have a gavel, you have a big fancy chair, you have a law degree, your butt is sore from sitting in your big fancy chair all day. Your professional life is a parade of potential or convicted malefactors, many of whom when asked for their thoughts say, “I didn’t do it!” and many of whom did, in fact, do it. Over time these protestations sour in your mind. Swinging your gavel like an instrument of war, you begin to relish the sentences you hand down. “I didn’t do it!” Bang! Ten years! “The cops set me up!” Bang! Twenty years! “Sorry, I’m just trying to find the small claims offi-” Bang! Death by fire ants!  

How refreshing would it be, then, if someone appeared in your courtroom and refrained from making such remarks? Might you be inclined to give that person a lighter sentence?

The Hows and Whens

Many defendants feel they have been mistreated in one way or another during their journey through the criminal justice machine, and to be sure, many have. But there are specific times, and a method, for raising those complaints. The times are in negotiations with a prosecutor, at trial, or long afterward, on appeal, and the method is through an attorney, who is emotionally removed from the issue and can express it in a way that is legally compelling. Moreover, you would only want your attorney to raise such complaints if they (1) can be proved and (2) have strategic value. Otherwise you’re just making judges’ gavel hands twitchy. Times not to raise those complaints, valid or not, are during an interview for a pre-sentencing report, during sentencing itself, while you’re talking to your probation officer, when the server at Red Lobster asks what you want to drink, etc.

In short, at some point in a criminal case, after all the arguments have been made and other strategies have been exhausted, admitting a mistake may be the very best thing you can do to improve your position. If that moment arrives, you will have to summon your courage and face the eternal fear of shame and punishment.

But, to be clear, I do mean you specifically. I’m not saying I’m perfect or anything. I’m just saying we can’t rule it out.