At a gathering of federal judges and attorneys last week, one member of the bench disclosed that she has instituted a new practice of meeting with criminal defendants after they finish their incarceration to discuss their plans for success on supervised release.

“It’s not an interview, it’s a dialogue,” said U.S. District Court Judge Charlotte N. Sweeney. “Here’s my conclusion: It will help 5%-8% of the people I do this with.”

Sweeney was one of a dozen trial, magistrate, circuit and bankruptcy judges who participated in a roundtable event at the Westin Denver Downtown on Nov. 1. Attendees rotated between tables, and each judge addressed a different topic.

Speaking on the subject of criminal sentencing, Sweeney, a 2022 appointee of President Joe Biden, said she is now requiring criminal defendants to meet with her upon their transition from prison to probation. There are no lawyers present, and her goal is to emphasize the consequences of violating probationary terms and allow the person to tell her anything they want her to know.

“Don’t worry, not crimes in prison,” she added. “It’s really, ‘What are your plans to succeed?’ … It’s more just to let them know they’ve exited, for practical purposes, the criminal justice system. Yes, they’ve got some terms. But they’re now back and they are to be treated as a citizen again, with rights and respect.”

Sweeney said she held her first meeting with a defendant who was sentenced by a different judge to 12 years. The man was released homeless from prison, but had gotten a job and had a good relationship with his probation officer.

“He knew he had terms. He knew I would be the one deciding if he violated them,” she described. “It was a really great first one.”

Sweeney declined to discuss afterward how she had gotten the idea to hold the meetings. Virginia L. Grady, the head of Colorado’s federal public defender office, told Colorado Politics her attorneys were aware of Sweeney’s initiative, but offered no further comment.

Sweeney also discussed her sentencing practices, including looking at her own sentences in similar cases and a chart with relevant factors for the case at hand.

“I feel I have a system to control my internal biases, the government’s biases, and watch how these are developing over time,” she said.

Adding that she believes it is her job to be “community-driven,” Sweeney said her sentencings will naturally change over time.

“So, the fentanyl issue in Denver is of utmost importance to me. I have higher sentences in fentanyl cases and that’s not a secret because I say it and you can see it. I rank the seriousness of these offenses higher than some people,” Sweeney said. “I think it’s important in our position to be community-focused and see what’s driving our community, what’s destroying our community and how we deal with that.”

Finally, Sweeney explained that while she understands why defendants might not speak on their own behalf at sentencing — perhaps due to nerves — she finds it helpful most of the time to hear from them directly. It is not helpful, she elaborated, for the defendant to deny responsibility.

“You can’t get up there and not understand what you did was wrong,” Sweeney said.

Jury trial pointers

During a different discussion, U.S. District Court Judge Regina M. Rodriguez spoke about her experience conducting jury trials. Rodriguez, a 2021 Biden appointee, said she believes she is the judge who tried the most cases last year at the court. She emphasized that jurors are thoughtful, notice everything that goes on and want to do a good job.

“I’ve had criminal cases where the jury said, ‘Can we talk to the defendant?'” she recalled. “Because they wanted that defendant to know that even though they convicted that person of a crime, they felt like he was worthy of something. So, they really are real people. And they want you to be real people.”

To that end, Rodriguez said jurors get frustrated at some lawyer behavior, including asking repeated questions to get a witness to respond in the way the attorney wants. She also said jurors were turned off when a lawyer cross-examined a witness in a way she perceived as skillful.

“The jury hated it. They thought this guy was way too harsh on the witness, that he was rude to the witness,” she said. “So, my lesson was, some of that stuff we learned in trial advocacy class — ‘go after the witness’ — juries don’t really like that.”

Rodriguez added she was surprised to learn about jurors’ reaction to hearing expert witnesses answer questions about how much they have been paid for their work on a case. 

“We had one expert, he made something like $81,000 a day in his practice” as a plastic surgeon, she said. “And the attorneys went on and on with this guy. When we talked to the jury they were like, ‘He must really be good if he makes that much money!’ And we’ve heard that multiple times from jurors.

“Their reaction was, ‘Wow, I really believed him because he must really know what he’s doing.'”

Objecting properly

Elsewhere, Judge Timothy M. Tymkovich of the U.S. Court of Appeals for the 10th Circuit discussed his court’s review of alleged errors, and the need for attorneys to specifically call attention to, or preserve, the error in the trial court.

“The 10th Circuit is a huge stickler on preservation. We’re pretty hardcore,” said Tymkovich, a 2003 appointee of George W. Bush. “We wanna give the trial court an opportunity to cure the error. That’s why we have objections, so the problem can be corrected at that level.”

He noted he is seeing appellate briefs arguing in favor of legal theories that are currently foreclosed by U.S. Supreme Court precedent, but must be raised at the lower level in order for the Supreme Court to eventually reconsider the issue. Tymkovich referenced an example from a case he decided in July, in which a defendant convicted of a federal petty offense argued he had the constitutional right to a jury trial — despite Supreme Court case law holding otherwise.

“I actually think it was a pretty good argument,” said Tymkovich, who wrote a concurring opinion suggesting the Supreme Court revisit its precedent. “I think the defendant did that because I think there’s some reason to believe that some on the Supreme Court would look interested on this issue.”

“From a practitioner’s perspective, it makes a difference,” said public defender John Arceci, who moderated the discussion. “It’s a message to the Supreme Court and it’s a message to the bar that there’s something here.”

The event was sponsored by the Faculty of Federal Advocates.