The Cook Case and the Right of Allocution

I don’t generally write about pending cases. But the high-profile homicide trial of Raymond Cook has recently wrapped up, and there’s a discrete aspect of the case that I found especially interesting.

First, a brief synopsis of the facts: Cook was a physician. After drinking at a country club, then later at a bar, his BAC was twice or three times the legal limit. Nonetheless, Cook got in his car and drove very fast through the streets of North Raleigh, crashing into the rear of a car driven by Elena Shapiro, a 20-year-old apprentice with the Carolina Ballet. Shapiro was killed, and Cook was charged with, inter alia, second degree murder. The case went to trial, and the jury acquitted Cook of murder, instead convicting him of, inter alia, felony death by vehicle. He was sentenced to the maximum possible aggravated sentence for that offense, 36 to 53 months in prison.

Here’s the part of the case that particularly caught my attention: Cook did not speak at the sentencing hearing.

A legal dictionary defines allocution as “a formal speech, especially one made by a defendant at the time of sentencing.” In non-capital cases, North Carolina provides a right of allocution by statute. G.S. 15A-1334 (“The defendant at the [sentencing] hearing may make a statement in his own behalf.”). The denial of the right is reversible error. State v. Miller, 137 N.C. App. 450 (2000) (remanding for resentencing because the trial judge denied the defendant’s request to allocate). By contrast, the defendant doesn’t have a right to allocate before the jury in a capital sentencing hearing. See generally State v. Green, 336 N.C. 142 (1994).

The purpose of an allocution is “to afford [the] defendant an opportunity to state any further information which the trial court might consider when determining the sentence to be imposed.” State v. Rankins, 133 N.C. App. 607 (1999). The sentencing judge need not ask the defendant whether he wishes to address the court. If the defendant wishes to allocute, he, or his lawyer should speak up and say so. See, e.g., State v. Carmon, 156 N.C. App. 235 (2003) (“Defendant’s attorney spoke on his behalf prior to sentencing. Defendant did not request to individually address the court nor lodge any objection to the trial court after his attorney spoke on his behalf. This is sufficient to satisfy the requirement that defendant have the opportunity to speak in his own behalf.”); State v. McRae, 70 N.C. App. 779 (1984).

A defendant isn’t required to allocute, of course, and many defendants do not. But as a matter of common decency, shouldn’t Cook have taken the opportunity to tell the court and Shapiro’s family that he was sorry for what he did?

Certainly that was my initial reaction. I’ve since heard a couple of possible explanations for his decision not to allocute. One suggestion was that Cook might have been worried about his remarks being used against him at a retrial if he were to appeal his conviction successfully. My impression is that any statements he made during allocution probably would have been admissible at any subsequent trial, though I’m not aware of a case on point in North Carolina and there appears to be some controversy on the issue nationally. Compare Harvey v. Shillinger, 893 F. Supp. 1021 (D. Wyo. 1995) (allocution admissible at retrial), with State v. Maestas, 63 P.3d 621 (Utah 2002) (allocution inadmissible at retrial, based on state procedural law). But even assuming that Cook’s allocution would have been admissible, I doubt that a statement expressing his sorrow and remorse would have been harmful to him at any retrial. After all, he never denied having killed Shapiro, instead arguing that he did not do so maliciously. An apologetic allocution would be completely consistent with that position. Another possible explanation for Cook’s silence is that he might have viewed allocution as futile, i.e., he might have been resigned to receiving the maximum sentence. But one could certainly argue that accepting responsibility and expressing remorse would have been the right thing for Cook to do even if it was unlikely to result in a shorter sentence for him. In fact, according to Cook’s lawyers, the true explanation for Cook’s lack of allocution was prosaic. They said that Cook was extremely remorseful, and had planned on making a statement at sentencing, but that “the moment . . . never came . . . [I]t felt too awkward, and so we passed on it.”

If you have thoughts about this issue, either with respect to the Cook case or generally, please post a comment. Since this post might attract readers who aren’t part of this blog’s regular audience, it may be worth repeating that comments are monitored for appropriate content as described here.