Sentencing Suzy

Originally appeared in the February 1998 issue of the ABA Journal.

Harmless Error - A Truly Minority View on the Law

Sentencing Suzy

BY ANDREW J. McCLURG

Children have an almost instinctive sense of the law. This no doubt derives from their pervasive experience with the adversarial system, which begins at birth.

By the time she is able to walk, the average child has been enjoined more than 200,000 times. Every movement, every reflex, every instinct is met with injunction: “No! Don’t bite. Don’t touch. No! No! Don’t hit. Don’t pull. Spit that out. No!” Not surprisingly, children develop excellent legal problem solving skills, from which lawyers can learn.

Consider the case of Suzy Spikes. Suzy is a precocious preadolescent girl who is close friends with my daughter, Caitlin. They play together when Suzy is not busy preparing for hearings in juvenile court. Suzy has taught Caitlin many lessons about life, most of which concern how to beat the rap.

During a recent neighborhood gathering, Suzy added a new twist to a popular childhood game. “Combat Monopoly” became an instant hit until the EMTs arrived to remove Suzy’s deed to Baltic Avenue from Billy Johnson’s nostrils.

Suzy received a speedy trial for this offense from her parents, Art and June Spikes, before whom she has successfully argued hundreds of cases. However, in this case her defense was hampered by an evidentiary ruling to “Not say even one word while I’m speaking to you, young lady.” The sentencing phase of her proceeding provides valuable lessons for lawyers:

An accused has the right to speak in mitigation of punishment. Suzy asserts she’s an innocent victim of the system and recounts her wounded childhood.

She reminds the judges that she’s always been their “precious little puddin’” and “snuggly-wuggly-bug.” She extolls the many months of patience she showed during her mother’s pregnancy and asks for the same consideration. In summation, she attempts to bribe the judges. Her allocution, though impassioned, leaves the judges unmoved.

A prior record can prejudice the accused. In response, Mrs. Spikes raises Suzy’s recent convictions on 23 counts of Negligent Failure To Make Bed, 47 counts of Willful Annoyance and 1,205 counts of Bad Attitude with Intent to Act Like A Teenager, a felony.

At this point, a baggie falls out of Suzy’s pocket and a pending charge of Unlawful Possession of Jolly Ranchers is added. Suzy objects to the introduction of this character evidence. Her objection is overruled, but she has preserved grounds for an appeal.

Never antagonize the court during sentencing. When pitiful sobbing fails to bring mercy, Suzy switches tactics to aggressive advocacy. She denounces the “corrupt judges of this kangaroo court” for their perceived inability to “never possibly know in a million years” the pressures faced by eleven-year-old girls.

To emphasize her point, she throws up on the carpet. This error in trial strategy results in a stiff upward adjustment under mandatory sentencing guidelines recently adopted by the Spikes household. Suzy is currently due to be released from her room in her junior year of college.

In future columns, we will continue tracking this interesting case through appeal, Suzy’s adolescence, first date, sixteenth birthday and hard time in the penitentiary.

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Andrew Jay McClurg is a law professor whose teaching and research interests include tort law, products liability, legal education, privacy law and firearms policy. He holds the Herbert Herff Chair of Excellence in Law at the University of Memphis Cecil C. Humphreys School of Law.
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