Steve Palmer [00:00:00]:

All right, Steve Palmer here, lawyer talk off the record on the air with another Q and A. We're going to jump right in. I have William from Idaho. And that makes sense because this is about the Coburger case. It says, Steve, I have a question about the Co Burger sentencing hearing. Before the hearing, Trump sent out this message on Truth Social, which I think is like a twit or a tweet X or whatever it is. These were vicious murders with so many questions left unanswered. While life in prison is tough, it's certainly better than receiving the death penalty.

Steve Palmer [00:00:27]:

But before sentencing, I hope the judge makes Kohberger at a minimum explain why he did these horrible murders. My question is why wouldn't the judge make him explain why he did it and can he refuse? This is a great question because it brings up, as these questions typically tend to do. It brings up other issues that I can talk about. So first of all, the answer is no. The judge can't make Kohberger necessarily. And I know I'm using a bunch of lawyer weasel words, say why he did it or what's going on. Now, there's some exceptions to this sometimes and I practice in a jurisdiction here in Ohio all the time where if you're going to enter a plea, if you're going to enter a plea and plead guilty to something, the judge will actually swear you in and the judge will make you tell the court what you did. Now, it's typically pretty fact oriented.

Steve Palmer [00:01:22]:

It's basic. On such and such a date in a certain county in Ohio, I broke into this house and I committed these murders and I did it with intent. And that's that what the judge is trying to do in this situation in the case in the, in the jurisdiction I'm talking about in Ohio is basically lock in the basis of the plea and make it solid. The judge is basically saying, look, you swore to tell the truth, you told me the truth and you told me what you did, therefore I'm going to find you guilty. It's a way to, I don't always agree with it, but it's a way to solidify the guilty plea. And by the way, it sometimes blows up the guilty plea. And this is the other side of the coin. So say my client won't do that or the defendant won't do it.

Steve Palmer [00:02:01]:

And if this Coburger were in this particular county, he said, look, I'm not going to tell you what I did in theory and I've had this happen up in this jurisdiction, the judge will say, well, then I'm not going to accept your guilty plea. Na, na, na, na. You're not, you know, you're not going to. I'm not going to take your guilty plea, therefore you can go to trial. This doesn't always help anyone because, look, the prosecutor has an interest in getting the case resolved. The defense has an interest in getting a case resolved. Nobody wants to go to trial and put the system through that, the victims families through that, the witnesses through that. So most of the time there's a workaround.

Steve Palmer [00:02:33]:

So the judge, sometimes in that jurisdiction, I would go to the judge and I would say, look, we're going to have a problem during the plea. My client's not going to be comfortable talking in court. Can I make a statement for him? And often the judge will say, yeah, that's fine. So back to the question. Could the judge have said, all right, Mr. Kohberger, tell us what you did, why you did it, why did you commit these hot anus murders? And Kohberger says, no, I'm not going to tell you. The judge in theory could have said, well, I'm not going to take your plea then. But most of the time, it's not worth blowing up the plea over that.

Steve Palmer [00:03:08]:

It's really about getting the case done, getting the life sentence. Now let's flip this around. Does Kohberger have a right to say, a right to talk, a right to allocute? We call this the right of allocution. And the right of allocution is basically this. Before sentencing, the defendant has a right to talk to the judge. And Everybody who's watched YouTube has seen these crazy videos of defendants throwing their middle finger up the judge or screaming f you to the judge or I'm going to kill you, too, and then getting tackled by the police in the courtroom. But most of the time, what happens is the defendant sort of offers an apology, maybe tries to offer an explanation of what was going on. Sometimes it's drug fueled, who knows? But that's called a right of allocution.

Steve Palmer [00:03:55]:

Now, if you looked through your pocket constitution in the first ten or so amendments or even the whole thing, you're not going to find right of allocution in the US Constitution. But most states recognize that right. The federal courts recognize that right out of the federal Rules of Criminal Procedure. And it's become just a customary common right, albeit not necessarily constitutional, that defendants have. They have a right of allocution to explain themselves, beg for mercy, offer an apology, throw up their middle finger to the judge. Now there's A couple other things I want to hit. If, say there's a plea bargain and say in Coburger there is a recommended sentence, something less than four life sentence or whatever you got. In a lot of jurisdictions, Ohio included, a recommended sentence is not binding.

Steve Palmer [00:04:44]:

Now, there are times you can make it binding and there's in federal court, we have binding plea agreements and that's another show. But a lot of times all we're doing is saying, judge, we want you to adopt the sentence that we want you to adopt and say if Kohberger doesn't offer an explanation that the judge required, the judge could say, fine, you don't have to tell me anything, but I don't have to follow your agreement either. So bye bye baby, you're going to do a harsher sentence and it's going to get worse for you. So can the judge actually force it? Not really, but the judge has a mechanism to make it worse sometimes. And the final thing I want to talk about is this. We all enjoy in the first 10amendments, in fact in the Fifth Amendment, a right to remain silent. So what this really means, we all have some understanding of what this means. But if I'm standing in a courtroom and I'm going to plead guilty to a crime, I have to waive certain rights.

Steve Palmer [00:05:35]:

Among them would be my right to remain silent. I'm not going to have a trial. I'm not going to cross examine witnesses, I'm not going to be able to subpoena witnesses, can't do any of the stuff that we would associate with a trial. We're not going to make the prosecutor prove me guilty beyond a reasonable doubt in front of a jury, et cetera, where I'm presumed or I start where I'm presumed innocent, I don't have to present any evidence anyway. I'm going to waive those rights. And among those rights is my Fifth Amendment rights. And once I plead guilty, I lose my Fifth Amendment rights. So the judge can actually ask me questions and I can't just simply refuse based on the 5th.

Steve Palmer [00:06:06]:

Now that gets us back to where we started. So, you know, if Coburger says I'm not telling you anything, the judge is going to say, well, I'm not going to take your plea or now it's going to get worse. Whatever. All those things can play out, but not necessarily constitutionally. I hope this answers your question. It's a great question. And look, whether you like Trump or whether you hate Trump, sort of insightful comment. I don't think the judge did force Coburger to explain why he did what he did.

Steve Palmer [00:06:34]:

But I do know this. It was a pretty significant sentence. The case is over. And prayers to the family and those who lost their loved ones. It was a horrible case. So, look, you got a question, you want me to cover it? LawyerTalkPodcast.com? shoot me a question in our little interface or go to the socials and leave us a comment. I'll address it there. Off the record, on the air.

Steve Palmer [00:06:52]:

Till next time.