Prosecutors cannot argue lack of remorse of at sentencing because Judges are specifically prohibited from considering lack of remorse when passing sentence.
Knowing this, the prosecution in Lawton v. State, 3D15-1520 improperly argued the defendant's lack of remorse when seeking the court to impose a severe sentence:
THE STATE: [I]n light of the fact that Mr. Lawton has,
still to this day, not expressed any remorse for what he's
done or any responsibility for something that he has now
been adjudicated guilty by 6 of his peers and in light of
the victim's wishes, the State is requesting that your
Honor sentence him to a minimum of five years in state
prison . . . .
(We will leave for another day the Dade's Sao's complete abandonment of their role and duty to seek justice and recommend a fair sentence. Victim's by the very nature of the fact they have been victimized are not in a position to request a just sentence. They usually seek vengeance, which is understandable, but not legal nor even biblical. But lest there be any doibt the Dade SAO has completely abandoned their role in seeking justice at sentencing, one need only re-read the words of the ASA who- at the urging of the victim, sought a five year sentence.).
In Lawton, the 3rd found that Judge Glick did consider that argument and the defendant's lack of remorse in sentencing Lawton. The 3rd vacated the sentence and remanded for a new sentencing procedure before a different judge. Even the best judges have a bad day, and Judge Glick erred.
But what bothers us is that prosecutors continually argue lack of remorse at sentencing when the law is clear and they should know better. The court in Lawton wrote:
It is well established that “[w]hile a sentencing court has wide discretion as
to the factors it may consider in imposing a sentence, it is constitutionally
impermissible for it to consider the fact that a defendant continues to maintain his
innocence and is unwilling to admit guilt.” Ritter v. State, 885 So. 2d 413, 414
(Fla. 1st DCA 2004).
It's apparently "well established" with everyone except the Dade SAO. What concerns us is that the new year brings new judges. And what with afternoon nail and spa appointments, tea and tee times, not to mention the odd origami class before dinner, judges just don't have the time to read case law. And new judges, like veals in a pen, are led through a maze by aggressive and over-confident prosecutors who continually push that "right up until today Judge he continues to show no remorse" argument that must still exist in some State Attorney Handbook under the heading "So Now You've Won a Trial. What's Next?"
So lets all make a new years resolution to keep Lawton and Ritter v. State handy, so that when prosecutors pull out the "no remorse" argument, the defense has a response. Well, at least some you need to make that resolution. We don't, for reasons that should be obvious.
See You In Court.
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