Colorado Sentencing Hearings
By Colorado Criminal Defense Lawyer – Attorney – H. Michael Steinberg
Colorado sentencing hearings in criminal cases can be difficult and complex and should not be overlooked in importance to a successful outcome. The focus of a sentencing hearing should be to obtain the best possible sentence for a client. What goes wrong – in my opinnion – is a defendant’s or the attorney’s “misread” of what motivates a judge at sentencing.
This article addresses that issue.
Colorado Judges Have A Certain Perspective At Sentencing – It Is NOT Your Perspective
In Colorado, judges are elected officials. They are first appointed by the Governor and then “retained” by the voters. They want to keep their jobs.
A Colorado criminal lawyer – if they are well experienced and seasoned advocates – knows that judges are not like social workers. They are much more cynical than the average citizen. When my clients tell me – as they often do – “if I go to jail- I will lose my job and I will not be able to feed my family.” My response may seem cold to them – but it is true based on my 30 years of experience and it is this – “the judge does not care about your family.” The judge’s focus is on the voters – his or her constituency – the public.
Colorado Sentencing Hearings – Persuading Judges Means Talking To Them About What They Care About
Persuasion at the point of sentencing means not assuming that a judge is concerned about granting mercy. To persuade a judge to impose a favorable sentence the traditional “poor me” arguments that have in the past focused on broken homes or dysfunctional family upbringing are – today – much less meaningfull. The focus has changed.
Ignoring this change as a Colorado criminal defense lawyer is done at the defendant’s peril and is a serious mistake in judgement.
Potential Threat Analysis
The court does not care about the defendant’s stressors. For an elected official – the morning headline is what matters. For Colorado Sentencing Hearings the focus for the judge is on gauging the threat this person poses to the community.
A Judges will ask themselves internally:
If I free him – will he go out and repeat this or other crimes.
If I jail or imprison him – what is the length of the sentence that I will need to impose to send the message that I need to send?
What will the public think of the sentence – is it harsh enough – will I be viewed as a weak sentencing judge by those who vote to retain me – or by my peers on the bench?
Judges Deal In Real Life – They Must Predict The Future
The Colorado criminal defense lawyer’s role then in a sentencing hearing is to give the judge what he or she needs in terms of factual information about the case and about the defendant that will assist – help the Court meet the critical need to understand the important factors at olay in the sentencing determination. Sympathy for the defendant simply does not play a role in this decision.
One Way – Sentencing Memorandums
A well written sentencing memorandum in the most serious cases can help to supplement the testimony of live witnesses at the sentencing hearing. A detailed analysis of the evidence along with the kind of objective proofs of subsequent mental health treatment, drug and alcohol classes, letters of apology – all will persuade and reassure a judge of the safety in issuing a lenient and merciful sentence.
The defense theory at sentencing must be – “I assure you – he will do no harm judge.” ” Your risks in granting probation tomy client are minimized….let me tell you why.”
The Colorado Sentencing Hearings – Sentencing Theory and The Sentencing Memorandum
A summary of the case in the light most favorable to the defendant is absolutely necessary in the well written memorandum or the live defense lawyer’s argument at sentencing. The focus should be on the defendant’s “story” of mitigation, rehabilitation, or reduced culpability. Above all – the story should resolve any concerns the judge may have or issues in the judge’s mind as to the aggravated aspects of the case… if possible.
The question as a lawyer – you must answer for the judge is – “should this man be placed on probation or sent to prison?
The Key To A Successful Sentencing Argument Is To Have Emotional Impact
Judges are also persuaded – as are juries – by emotion. Themes such as justice, fairness, equality under the law, and uniformity in sentencing, as well as consistency, may all be used to persuade a judge to rule a particular way.
In an Assault Case for example – where self defense was a factor but did not fully persuade the jury at trial – the themes of self defense may still have relevance for a judge = at the Colorado Sentencing Hearing. A judge may ask whether the defendant did everything possible to avoid violence. Or whether – in a defense of others case – the defendant as a loving person and a responsible person, in caring for his brother, acted in his brother’s defense when the blow or blows were struck.
The “story” of a case is very often complex and a Colorado criminal defense lawyer has very little time to make the emotional impact he or she wants to impart to the judge. Therefore – the use of facts to achieve emotion – as in closing argument – is critical. The lawyer tells a story of the case from the defendant’s perspective that moves the judge to see the case from the accused’s perspective.. The why of the case MUST be explained to the judge at this point.
Supporting Your Sentencing Request With The “Story”
The sentencing theory must persuade by avoiding the “poor me” approach. It must ask for fairness and mercy for reasons related not to a stressful life – or the abuse of alcohol or drugs – (both mostly voluntary acts) – but rather – the theory must persuade by focusing on the judge’s need to do justice and to mete out fairness in the given case and to accomplish the impossible task of equality before the law.
These are the lofty principles (along with the “newspaper headline” fears above) that motivate judge’s. Judge’s take their job very seriously.
Do Not Ignore the “Bad Facts” Or You Will Give The DAs The Opening They Need
It would be a mistake to ignore the bad ” or negative” facts against the defendant.. the goal here is to explain them away or at worst – neutralize them. The effective criminal defense lawyer will address ALL of the facts of the case…
If – in the hypothetical above – the defendant beat his brother’s aggressor mercilessly – then an explanation is in order – a mental health evaluation and anger management classes (before sentencing) could help the judge understand it was an overreaction based on the circumstances and the acts were fear driven.
The Sentencing Argument
Some final thoughts ….Witnesses should always be called – if possible – to support the sentencing theory. The sentencing memorandum – if appropriate should immediately precede the hearing by at least 24 hours. The theme must be consistent and thoroughly cover all aspects of the judge’s final sentencing decision.
Also – the defendant should also develop an oral statement that he or she should practice delivering to others. It should be drafted with ideas taken from the sentencing theme as developed by the Colorado criminal defense lawyer.
Please call our law firm if you have questions about ..
Colorado Sentencing Hearings
H. Michael Steinberg has been a Colorado criminal law specialist attorney for 30 years (as of 2012). For the first 13 years of his career, he was an Arapahoe – Douglas County District Attorney Senior prosecutor. In 1999 he formed his own law firm for the defense of Colorado criminal cases.
In addition to handling tens of thousands of cases in the criminal trial courts of Colorado, he has written hundreds of articles regarding the practice of Colorado criminal law and frequently provides legal analysis on radio and television, appearing on the Fox News Channel, CNN and Various National and Local Newspapers and Radio Stations. Please call him at your convenience at 720-220-2277.
If you have questions about Colorado Sentencing Hearings in the Denver metropolitan area and throughout Colorado, attorney H. Michael Steinberg will be pleased to answer those questions and will also provide quality legal representation to those charged in Colorado with adult and juvenile criminal matters as regards …..Colorado Sentencing Hearings.