Must You Say Anything?

Post Conviction Relief

One of the most frightening times in a trial lawyer’s career is when his client decides to speak in court or in a deposition. One of those moments came to haunt me many years ago and I still remember it. In fact I remember the moment but cannot even recall the client’s name. Here is what happened.

The Judge Made an Error

I was appointed to represent a man in the penitentiary who had filed a motion for post-conviction relief. That is a motion that many, if not most, of the people who go to the pen file once they get there. It attacks some aspect of their sentence. In this case the man challenged the way he was sentenced. The sentencing judge gave him eight years on Count 1 and ten years on Count 2 and said that the law required him to run the sentences consecutively rather than concurrently.

In other words the judge said the man could not serve the sentences at the same time. He had to do eighteen years.

I had only been out of law school a few years at that time. A lot of my work came from appointed cases. I was happy to have the work because it meant I had some income. My office was in Warrenton, Missouri. That was the 12th Judicial Circuit in the Missouri Court system.

A New Judge

Judge Adams, the original sentencing judge had retired by the time this man filed his motion. The new Judge was a man by the name of Ed Hodge.

Now Judge Hodge did not always agree with me, in fact he didn’t often agree with me. But he was fair and honest. He was a Judge that could be relied upon to do the right thing.

Part of the problem with this case was that the defendant had broken out of the Warren County jail and in the process roughed up one of the nicest deputies on the force. Everybody liked and respected this deputy. I believe that part of the reason for the sentence the defendant got was because of his treatment of this deputy.

Bad Guy

I should point out that the defendant was not a particularly nice guy. Keep in mind that this was the sentence on the jailbreak and assault on the deputy. He was already in the county jail accused of some other crime.

I filed my appropriate papers in the post-conviction case. The law was clear that the judge was not required to run the sentences consecutive to one another. It was discretionary on his part. He could have run them concurrently or consecutively. Maybe if he had realized that he would have run the concurrently. That would mean the defendant would only have to serve ten years at most, rather than eighteen. (I am not going to get into here the actual time served before eligibility for parole.) Basically the judge made a mistake about what was required of him. And he put it on the record. So we had a shot.

There Was Hope

Maybe, just maybe, we could get this sentence significantly reduced.

When the time came, we had our hearing. Judge Hodge took it under advisement and then announced a sentencing date.

I saw Judge Hodge in the hallway just before Court convened. The look he gave me made me confident he was going to give us what we asked for; ten years instead of eighteen.

I could tell from the Judge’s preface that things were going our way. He acknowledged that the crime had everyone stirred up because of the deputy. He talked about what the law required and how the previous Judge had misinterpreted the law.

No! No No!

He looked at me and asked if I had anything to say. I said a few words that amplified what Judge Hodge had just pointed out. Nothing like reciting what a person just said and telling them how brilliant it was.

Then Judge Hodge looked at me and asked, “Does your client wish to say anything?”

“No,” your Honor, barely left my lips when I heard a voice coming from the person next to me saying, in a loud voice, “Yes I do.”

I leaned over toward him and said, “You don’t need to say anything.”

“I have a right to be heard,” he said loudly.

“Mr. Schoeneberg, I believe your client wishes to make a statement,” said Judge Hodge.

“Yes, your Honor,” I said.

The defendant then let loose with a tirade of how screwed up this whole process was, how he should not have pled guilty in the first place because he escaped as a result of the lousy treatment he was getting in the Warren County jail, how the deputy he assaulted was a scumbag who got what was coming to him and how this Judge and all the Judges before him were corrupt and unworthy of being on the bench.

After what seemed like an eternity he went silent.

The Voice You Hear!

The next voice I heard was that of Judge Hodge. He was explaining to my client that the sentencing Judge had made a mistake. That our Motion to set aside the sentence was granted. That it was now time for the man to be re-sentenced.

“It is the judgment and sentence of this Court that on Count 1 you be sentenced to eight years in the Missouri Department of Correction and on Count 2 you be sentenced to ten years in the Missouri Department of Corrections. I am not required by law to run those sentences consecutive to one another. However, I am going to run the sentences consecutive to one another for a term of eighteen years in the Missouri Department of Corrections.”

If you ever have to stand before a Judge and are asked of you want to make a statement, please make sure you have gone over it in advance with your attorney. Enough said?

Related Posts
  • Jury Nullification and You Read More
  • Are You Open During the Coronavirus? Read More
  • Police Brutality Read More