Here's a case that probably won't (and shouldn't) be around for long. The central issue is whether a criminal defendant has the right to allocution -- to speak to the court -- before it pronounces sentence. Those of you into legal history know that this is an incredibly longstanding right, and was an important component of early Anglo-American jurisprudence.
The Supreme Court of the United States has held that the Federal Rules grant defendants the right to allocute, the Ninth Circuit has held that defendants have a federal constitutional right to allocute, and the California Court of Appeal (in a case called Shannon B.) held that Section 1200 of the Penal Code -- which states that at sentencing the defendant "must be asked whether he has any legal cause to show why judgment should not be pronounced against him" -- grants a statutory right to allocute.
But Justice Stein disagrees with the holding of his colleages on the First Appellate District in Shannon B., and also disagrees with Judge Trott's holding on the federal constitutional issue in Boardman, and holds that there is no statutory or constitutional right to allocute. So defendants aren't entitled to speak as to the validity or propriety of their sentence, or to give reasons before sentencing why they should or should not be punished severely, or even to request leniency by the court.
I disagree. And think that many other people would as well. The analysis in Boardman and Shannon B. is, in my mine, a fair bit more persuasive than Justice Stein's. Especially with respect to the (fairly unsupported) harmless error analysis at the very end of this opinion, which says "Oh, you can't prove that anything you said would have made a difference anyway, so be quiet." A theory that sharply conflicts with the purpose of allocution to begin with, as well as with the human -- and necessarily indeterminate -- nature of mercy and justice and a slew of other concepts that are an inherent part of our judicial system.
Under normal circumstances, particularly given the importance of the issue and the precedential conflict generated by the opinion, I would anticipate that the California Supreme Court would take this case up. It might well. However, the facts of this case are a little sloppy, and it could be much clearer than it is that the defendant really wanted to speak prior to -- as opposed to in the midst of -- sentencing.
For this reason, were I on the California Supreme Court, I might prefer to depublish, rather than review, this one. And think that others might as well. That's not usually my preferred approach -- I generally think that depublication is merely the lazy way out -- but here, it might well be appropriate.
Anyway, I disagree with this one. And it's important.
