What Good Is Remorse?

Joel Cohen in Law.com, September 07, 2010

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Harvard professor Marc Hauser rocked the science world last month when evidence surfaced indicating that he may have committed the ultimate sin of fabricating data. Given that Hauser is a leading expert in the field of moral psychology and author of the book "Moral Minds," the academic community is bewildered by his actions, including his tight-lipped admission of some "mistakes" (but not misconduct) in response to the scientific misconduct charges. Only if he were to remorsefully give a full and frank account of the his errors could the process start of repatriating him into the community in some form, his colleagues tell The New York Times.

Redemption through a showing of remorse is a common path in society -- but what role does remorse play in a court of law? Can people get a second chance at being repatriated into the community if they are remorseful about their actions, after they've been caught and even convicted? Let's take the case of Ronell Wilson, the head of a violent gang in Staten Island, N.Y., who dealt drugs, committed robbery and coldly executed two undercover police officers who posed as gun buyers, brazenly declaring afterwards that he had "popped" them. All of this came out at trial. He was caught, convicted and sentenced to death.

Now if the death penalty is to be administered, Wilson is as deserving as anyone to take the needle. But setting aside the death penalty and the other issues raised in Wilson's 2nd Circuit appeal, let us consider how America, and the justice system, deal with the "strategy" of a defendant -- in this case, Wilson -- to show remorse, here to a jury that had already convicted him (since, in death cases, the jury actually decides sentence, too).

And make no mistake, given that we're talking outside the courtroom, Wilson's was a strategy, pure and simple. Indeed, over the government's objection, the trial judge surprisingly allowed Wilson to read an uncross-examined statement to the jury that would finally decide his sentence. The gist of that statement after fighting the case and declining to testify at trial was: His "deepest sorrow toward the victim[s'] family and friends. I have seen the pain that I have cause the family and friends ... I would never wish this for anyone because I know how painful it is. So I cannot be remorse[less] and show no sympathy to these men's families and friends..." A frustrated prosecutor would have to zip his lip, unable to cross-examine this stone-cold killer over when, exactly, he decided to "feel their pain."

So, all said and done, the prosecutor wasn't able to conquer his frustration. Rather, when his turn to sum up rolled around, he boldly told the jury: "Ronell Wilson up until the very moment that he addressed you last week has done everything he could to escape responsibility for his crimes. He had an absolute right to go to trial, put the government to its burden of proof, to prove that he committed these crimes, but he can't have it both ways. He can't do that, then say I accept responsibility. And [say] 'I'm sorry, only after you prove that I did it.'"

In other words, too little, and way too late. Basically, Wilson's prosecutor said the obvious -- what each juror knew even without the reminder. Indeed, even an ingenious child cries out with remorse when caught. But the prosecutor's action caused the 2nd Circuit to reverse the death sentence. And, a divided 2nd Circuit literally gave Wilson a second chance at life itself.

Was the reversal because Wilson's remorse was actually not too late? No, the majority concluded that by virtue of the prosecutor's rhetorical flourish, the government had undermined Wilson's basic Sixth Amendment right to trial, as well as his Fifth Amendment due process rights, by having used Wilson's demand for trial to evidence a lack of remorse and refusal to accept responsibility for his actions. In effect, the court ruled that the government had penalized Wilson for simply exercising his rights. The case is U.S. v. Whitten, 610 F.3d 168 (2d. Cir. 2010).

So is that how remorse is handled in a court of law, or rather, how a court reverses a verdict when remorse is not properly handled? In some sense, and perhaps as a policy matter, the Whitten ruling is about the timing of remorse. Just as the timing of such evocations is everything in societal circles, so too is it in a courtroom. Here, the prosecutor's actions effectively denied Wilson a second chance, a chance to freely communicate a heartfelt sentiment of remorse without penalty for so doing, since society, here in the person of a trial jury, is often openly willing and, according to the 2nd Circuit, basically should be allowed to hang its hat on such a statement. People want to hear it: the apology with the accompanying remorse, as unlikely as it might have been in Wilson's case.

Of course, society should, understandably and properly, be skeptical when someone shows remorse when caught dead to rights. After all, who was Wilson really kidding given the timing of his "remorseful" display? Still, we are a people of second chances, and Wilson's prosecutor eliminated any realistic possibility that the jury might have given Wilson the benefit of the doubt, as unreasonable as that doubt might have been when he advanced it by affirmatively underscoring the emptiness of his plea.

Outside the courtroom, one would surely need an abacus to count how many lesser public figures in the last few decades alone have been accorded second chances by the public predicated on their public expressions of remorse. We as a society want to believe people are sorry. We want to believe it is never too late to give someone a second chance, despite whatever knee-jerk skepticism we, and frequently the media, may have about them and their often odious acts of wrongdoing while in public life, albeit falling short of Ronell Wilson's murders.

Put aside members of the bar who have been re-admitted after disbarment or significant periods of suspension. Consider the major public figures who have made significant comebacks despite ignominious episodes in their lives, such as Bill Clinton, Ted Kennedy, Marion Barry, Jimmy Swaggart, Sol Wachtler and Eliot Spitzer, to name but a few. In all cases, public displays of remorse have been critical to their returns. These figures have each been able to obtain a "second life" precisely because they employed a mea culpa, each of whom employed it only after they had been caught pretty much red-handed.

To be sure, many among us find such expressions of remorse disingenuous, as do the journalists, talk show hosts and water cooler enthusiasts who often have their own strong and unforgiving sideline opinions and who may urge those who listen to apologies to reject them outright. In court, a sentencing judge may choose to affirmatively reject such a late-arrival expression of contrition as simply a "when all else fails" fictitious strategy designed to persuade the judge to grant a thumbs up, when a thumbs down is the order of the day. Indeed, no reviewing court will tell a judge that he can't properly use his common sense to reject a statement of purported remorse when all material facts demonstrate that the defendant wasn't truly remorseful, and his forgive-me plea was made with his fingers crossed. Outside the pristine laboratory of the courtroom in which a jury may be seated, all is fair in rejecting a contrition that seems unreal on its face, if alone because of its timing.

So, what is different about Ronell Wilson in the Whitten case? Plainly, as stated in the majority opinion, it is simply that "the government used Wilson's demand for trial to evidence lack of remorse and refusal to accept responsibility, characteristics offered to undermine Wilson's defenses to a sentence of death." 610 F.3d at 195. The court also noted that the government emphasized Wilson's lack of remorse as support for the aggravating factor of future dangerousness, citing the prosecutor's words: "What else tells you about the incredible danger that this man poses? ... The fact that the defendant has absolutely, absolutely no remorse whatsoever for his actions?" The government effectively used Wilson's statement of remorse to demonstrate that in fact he actually had none. Now there's a strategy!

Of course, if a prosecutor had argued instead to a sentencing judge -- instead of to a jury as was done in the Whitten case because the government was seeking the death penalty -- that the judge should reject a statement of remorse on the grounds that it was flatly unavailable given that the defendant had demanded a trial, an appellate court would find any error harmless. Not so with juries. Jurors are, of course, entitled to reject the bona fides of an expression of remorse. But if they do, they need to reject what they themselves see as an insincere or too-late (hands already caught in the cookie jar) strategy, not what a prosecutor tells them to see. Disingenuous as a late-breaking apology may be, its strategic nature is something for the jury to legitimately reject if it chooses to, but without the overbearing, even if commonsensical, expressions of a prosecutor armed with a needle in his hand. The justice system is predicated upon letting the unassailable hand of society judge their peers.

The truth is that truth does not always triumph in the criminal justice system, particularly at times when a jury is sheltered from realities that are pellucidly clear to those best able to discern such truth in the justice context, i.e., the professionals. Still, the system works best when laymen who sit in the jury box are allowed to make the critical judgments with which they are tasked. If the rhetoric of a prosecutor, wrapped in the majesty that she uniquely brings to the courtroom, is allowed to tell the "deciders" that a defendant's effort to show remorse is simply no good because the defendant first exercised his constitutional right to a trial in a death penalty case, the prosecutor basically becomes the judge, jury and executioner. Remorse, frankly, is way too important not to be left for a decision by the professionals.

Small wonder that Marc Hauser has asked the science community to hold back judgment until the U.S. Attorney's Office for the District of Massachusetts has completed its investigation (and presumably, taken whatever charges it may file to trial). Despite Hauser's request, though, his academic colleagues and the public at large are flatly entitled to listen to news reports that accuse the moral psychologist of being a hypocrite. So be it if the media tries to deny him the day in court he seeks and the second chance he desires. When and if the case gets to a court of law, though, that type of behavior simply won't fly. When it comes to an alleged criminal facing his accuser in the courtroom, the Constitution makes the government-as-accuser follow different protocols. And for that, we should all be thankful -- every single, imperfect, mistaken and potentially remorseful one of us.

Joel Cohen is a partner in the New York office of Stroock & Stroock & Lavan, where he practices white-collar criminal defense law. He teaches professional responsibility at Fordham Law School and is also the author of "Truth Be Veiled," released in July 2010 by Coffeetown Press. Katherine A. Helm, Ph.D., is a law clerk for a U.S. Court of Appeals judge in Washington, D.C. She previously clerked in a U.S. District Court and worked at a large New York City law firm. This column is the latest in a monthly series by Cohen and Helm for Law.com. The views expressed are the personal opinions of the authors.