Right to Allocute, not to Filibuster, Court Rules

CHICAGO (CN) - A sentencing judge properly interrupted the meandering statement of a convicted bank robber to focus on mitigating circumstances, the 7th Circuit ruled.

Billy Covington robbed a bank in Lansing, Ill., while brandishing a gun. He was caught and pleaded guilty.

During his sentencing hearing, Covington described his troubled childhood, suicidal tendencies, drug use and time in the U.S. military. U.S. District Judge James Zagel asked Covington two questions, before effectively cutting off his testimony.

Covington was sentenced to 10 years imprisonment, primarily because Zagel concluded that the defendant posed a danger to himself and others. Zagel especially worried about the mental instability that allegedly led Covington to bank robbery as a way to commit "suicide by police."

On appeal, Covington argued that Zagel had denied him his right of allocution by interrupting and cutting his testimony short.

Though it is unknown exactly how long Covington's statement lasted, his remarks occupy six double-spaced pages of the court transcript.

A divided three-judge panel of the 7th Circuit affirmed the sentence Friday.

"An interruption by the court does not in itself amount to a denial of a defendant's right of allocution," Judge William Bauer wrote for the majority. "This is especially true in this case, where the court's interruption was an attempt to refocus the defendant's statements on mitigation rather than to terminate the allocution completely."

"Although the court interjected with questions, it permitted Covington to answer them fully and even permitted him to veer away from the original subject matter of those questions. While Covington was free to speak about whatever he wished, the court's interruption was a reasonable attempt to get him back on track and thus a reasonable limitation on his right of allocution."

Judge Diane Wood penned a heartfelt dissent, rejecting the majority's characterization of Zagel's interruptions as "helpful efforts to focus Covington's statements."

"In this case, the District Court defeated both the broader purpose and the practical utility of allocution by refusing to let Covington speak for himself and instead confining Covington's contribution to a brief question-and-answer session," Wood wrote.

Zagel should have allowed Covington to tell his story and discuss what he believed should to be mitigating factors, Wood explained.

"When it comes to allocution - the defendant's own chance to tell his story - it is hard to see how incessant interruptions from the court could ever be helpful," Wood wrote. "This is not to say that the court has to listen for hours to a wordy defendant, and it certainly is not to say that the court is obliged to respond in any particular way to the defendant's statements. But the court does have an obligation to listen, not to talk."

Wood also quoted the 7th Circuit's 1991 decision in United States v. Barnes: "Because the sentencing decision is a weighty responsibility, the defendant's right to be heard must never be reduced to a formality. In an age of staggering crime rates and an overburdened justice system, courts must continue to be cautious to avoid the appearance of dispensing assembly-line justice."

By cutting off allocution, Zagel had missed Covington's explanation that his new therapy was achieving results, an assertion that undercut Covington's allegedly dangerous propensity, Wood concluded.

The majority rejected Wood's interpretation in a footnote, saying it "equates the right of allocution with the right to filibuster."

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit