Thoughts on Remorse

The state criminal bench is chock full of former prosecutors--lawyers who spent their entire legal careers believing cops, and who are highly unlikely to believe anyone who refutes what a cop has to say. The justice system suffers dearly from this phenomenon, which is in part the product of 16 years’ worth of former Republican governors like George Deukmejian and Pete Wilson going to the prosecutors’ pool for more than half of all their judicial picks.

Take the case of Javier Francisco Ovando, who was gunned down by some LAPD thugs, and who then was charged with assaulting the cops, notwithstanding his claims that he was unarmed and didn’t do it. The sentencing judge not only threw the book at him, but also poured it on Ovando--who, as it turns out, was both unarmed and innocent--because Ovando showed no remorse for the crime he didn’t commit.

Remorse is a factor that is considered in a variety of legal situations, including criminal sentencing and bar disciplinary proceedings. It is a very dangerous factor because its use results in a defendant who is convicted and but does not show remorse getting a stiffer punishment than a convicted person who shows remorse. The use of remorse in sentencing is completely blind to the possibility, as in Ovando’s case, that a person convicted of a crime might be innocent, and forces him to show remorse by requiring him lying to a court.

Remorse as a factor in assessing appropriate punishments is a horrible tool of coercion that puts convicted offenders who are innocent in the Catch-22 of either having to lie and confess to something they did not do or refuse to lie and be punished more severely. It is an archaic principle that is rooted not in law but in a Puritan, twisted sense of morality, without any consideration that a very small, but still significant, number of persons convicted of crimes are innocent.

To punish more harshly an innocent person because he refuses to lie and say he has remorse for that which he did not do is a kind of mental torture, by whose application both the convicted and society lose.

Fortunately for Ovando, justice finally prevailed, but at what cost? Ovando one day will return to his native Mexico a very rich man after he gets through suing the LAPD; alas, the judge enjoys absolute judicial immunity for his part in all this.

But what of the LAPD, its brutality and its code of silence? It was stoutly claimed at the time Ovando was shot that what the cops did was within policy. We’ve heard that so many times in so many cases of citizen death and injury at the hands of the police. Where’s the remorse?