Criminal defense lawyers, like anyone else who toils day after day in the trenches, have a tendency to take on certain attributes of the system.  We call our clients “the defendant,” and we use our legalistic jingo to shortcut our way through the day’s work.  Oh boy.

Consider, if you will, how this impacts a judge who is about to impose sentence.  The judge has before her the defendant’s rap sheet, the indictment, the predicate felony statement and the presentence report prepared by probation.  If the defendant’s name was written in the caption, the judge wouldn’t even know who he was.  A nice, personal system, right?  And yet defense lawyers are right there with the court, doing absolutely nothing to remind the judge that there’s a real, live human being in the well, with a family that loves him and depends on him. Oh boy.

It is our foremost duty at sentence to turn those official sheets of paper into a living, breathing human being.  Never, ever call your client “the defendant.”  He has a name.  Use it.  The court is not sentencing “the defendant,” but John Smith.  I prefer to use the full name, as the first name alone is too familiar, while calling my client Mr. Smith sounds too formal, deferential and even a tad pompous.  Moreover, I want the judge to see my client as a complete person, and the formal approach maintains a level of detachment that allows the judge to ignore the existence of a person behind the Mister.

Learn something about your client.  We fall into the trap of seeing a crime rather than a person.  We talk about the Sale 2 case, as if all Sale 2 cases are the same and all defendants charged with Sale 2 are in the same boat.  This constitutes a failure of representation.  We represent people, not crimes.  Get that bone out of your head that makes you categorize clients by their crime. 

Instead, spend some time talking to your client.  Learn about their family, their kids, their education, their life before they met you.  You can’t convince the judge to see them as human beings if you don’t.  And you will likely be surprised to learn that there’s life behind those eyes.  They didn’t grow up wanting to be a gangster.  They didn’t go to Wharton so that someday they could raid the pension plan.  But you won’t know this if you don’t ask.

Next, you need to communicate your message to the Court.  There is no rule of life that says that your sentencing argument is limited to 3 minutes.  As with any argument, you need to hold the judge’s attention and bring your message home before the judge dozes off, but that’s a matter of style and delivery and beyond the scope of a blawg post. 

The point here is that your client is a human being and the court needs to know that they are sentencing a real person.  There may be little children whose lives will be forever changed by the words the judge is about to speak.  There may be a harsh life, abuse and misery, that produced the person whose failure to adhere to the rules that apply so nicely in the suburbs is about to be judged.  Humanize your client.  If you don’t, you give the judge a free hand to sentence a piece of paper and a crime.  It’s much easier to lock a Sale 2 away forever than to leave John Smith’s 16 month old son, Harold, without a father.