When Defendants Want to Tell ‘Their Truth’ at Sentencing

Last month, Daniel Rodriguez was sentenced to 151 months—more than 12 years—for his role in the Jan. 6 riots at the Capitol. Rodriguez had, among his other horrendous acts, stun-gunned a Capitol police officer leaving him unconscious, later unable to return to duty.

Rodriguez’s extravagant acts that horrible day undoubtedly sufficed to warrant lengthy imprisonment. But, at sentence, he rambled on for some 25 minutes talking nostalgically of having armed himself during the military drills anticipating a Jan. 6 “fight” with law enforcement.

Judge Amy Berman Jackson of the US District Court for the District of Columbia responded insightfully, “Today was not the best day to say you had to be armed and ready because police don’t always do the right thing.”

Jackson articulated what many judges likely think when sentencing defendants who don’t exercise the common sense, if not candor, of demonstrating remorse. At that very moment, as the New York Times reported, “one of his lawyers slumped in her seat.”

Who could blame her? After all, the judge observed Rodriguez’s unambiguous lack of remorse—indeed, his pride in his actions. His remarks aggressively doubled down on his conduct, despite two years and an indictment that intervened.

And his attorney surely recognized that everything she counseled her client about preparing for his judgment day had been for naught. What urgently motivated Rodriguez on Jan. 6 was still his North Star and, astonishingly, he wanted to point out that “star” for the judge to see.

Some defendants seemingly need to express their truth, however insidious, no matter how damaging to themselves. Rodriguez may come to regret it, but maybe not.

Perhaps he had decided that the judge had made up her mind to throw the book at him long before sentencing day. Maybe, for him, it was more important to be true to himself and to show his fellow travelers his faithfulness to the cause.

I vividly remember being in the courtroom when, in the 1980s, Congressman John Murphy was sentenced for bribery in the FBI’s ABSCAM investigation. A Korean War hero who had received the Bronze Star, Murphy simply said, “Judge, you’ve made up your mind about my sentence before you came to court today. I’ve climbed mountains before. I’ll climb this one too.”

The judge sentenced Murphy to three years. Indeed, the judge had probably made up his mind beforehand. But could he have been swayed toward leniency given Murphy’s past heroism? Or did Murphy even consider that in deciding how to present himself?

It’s an attorney’s duty to tell their client the consequences of speaking their full “truth.” Defendants should be told they would be wise to express a well-manicured contrition that may be delivered with the face of sincerity, even if not sincerely felt.

If the defendant is fully informed that the whole truth about lack of remorsefulness can land them in jail for a long or longer stretch, the lawyer has fulfilled their responsibility.

While many defendants may not be able to express genuine remorse, putting in effort will prove important. I know—this may seem like encouraging defendants to engage in deception to influence a judge’s leniency. But no. Rather, I’m encouraging sincere remorse—guiding the client to realizing how their conduct has hurt others, including but also beyond their own loved ones.

Indeed, it’s the lawyer’s job—and that of the defendant’s family, too—to persuade the defendant of the error of their ways. If the defendant is able to honestly acknowledge it to themselves, they will likely also be able to acknowledge it to the judge—albeit, some better than others.

Whatever Rodriguez’s lawyers tried to do to limit his jail exposure, he was simply immovable and they knew it long before sentencing day. Rodriguez, though, is a rarity—most people can eventually feel remorse for harmful conduct.

Most importantly, persuading a judge of a defendant’s true remorse isn’t accomplished by a lawyer—like a ghostwriter of high school student term papers—composing a passionate sentencing letter for him.

Eloquence is far less important than sincerity. If the defendant addresses the judge orally, it will likely be clear if the defendant didn’t draft their letter.

When the defendant has pleaded guilty—contrition is more readily accepted when the defendant hasn’t gone to trial or testified—it is critical that the defendant recognize the harm done. This should include harms to their victims; to the greater community; to their family that relies on them, but taught them better; and to the court.

A lawyer won’t convince a defendant by looking the defendant in the eye, telling then they’ve done wrong. If the client is a drug dealer, maybe the attorney escorts them to observe those they transformed into addicts.

If the client committed health-care fraud, the attorney could take them to a hospital where patients abused by their conduct lie on emergency room beds. If the defendant is an absentee slumlord, make them see and hear how their tenants live.

Attributed to many is the quotation: “If you can fake sincerity, you’ve got it made.”

Judges, better than most, see through faked sincerity. Rodriguez didn’t want to fake it, and nothing his lawyer could have tried would have worked. He was immovable.

The lawyer’s duty, though, to a movable client is to help mold true sincerity, not only because it will lead to a more lenient sentence, but also because of the benefit of remorse to the defendant, the victims, and to civil society.

Rodriguez is probably unique. Most people can successfully be made to change by creatively helping them reassess their past behavior. Criminal lawyers, among other things, often need to be change agents.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Joel Cohen, a former state and federal prosecutor, practices white collar criminal defense law at Stroock & Stroock & Lavan.

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