SENTENCING PART III

There are two moments in a defense attorney's career when they are absolutely helpless: after finishing closing argument and placing the case in the hands of the jury, and after making your final pitch to the judge during sentencing. One doesn't necessarily follows the other, which makes the sentencing hearing even crueler. 

In preparing for sentencing, one must always consider the posture of the case. Is it time for acceptance and an apology, or is there a vigorous appeal planned?  Can the attorney and the client walk the narrow line between both and embrace both seemingly opposite concepts? 

In the sentencing that I wrote about in an earlier blog post and concluded this month, we were so flabbergasted by the verdict based on what my client and I considered a complete paucity of evidence and  exculpatory testimony from multiple cooperating government witnesses, an apology and acts of contriteness seemed to me to be downright hypocritical. This was a case that was going to be and is being vigorously challenged on appeal. 

After going through the distasteful legal calculus of the federal sentencing guidelines, it came down to my client's allocution (his statement to the judge) and then mine. I necessarily went last so that I could clean up any errors or misstatements my client made (but he did fine). 

When the judge- a fine and fair trial judge- asked me for my recommendation on sentencing, how could I impress upon him that no sentence (in my opinion) was fair? 

Dr Atul  Gawande, MD., is a Harvard educated physician who brings a philosopher's inquisitiveness to medicine and life. In his wonderful book "Complications, a Surgeon's Notes On an Incomplete Science" he tackles the topic of intuition. 

What is intuition? Is there a scientific explanation for that feeling we all get, that often turns out to be true?  How many times have we said "I have a bad feeling about this" just before disaster strikes? 

As trial or even a simple court hearing unfolds,  decisions made by the participants take the case from fork in the road to fork in the road until, despite our best efforts as defense attorneys to control events and prepare for everything, we are confronted with something unexpected. 

It helps at this moment to have a feeling about what will work. Intuition. 

Dr. Gawande's writes: 
"It's because intuition succeeds that we don't know what to do with it. Such successes are not quite the result of logical thinking but they are not the result of mere luck either."

I reached that fork in the road when the sentencing judge asked me for my recommendation as to a sentence. I had made all the legal arguments. I had succeeded in knocking out much of the prosecution's unseemly request for a prison sentence two to three  times what was anticipated if he had pled guilty prior to trial.  (I will address the "trial tax" and how we punish people for going to trial in a subsequent post.) 

I tried to read the judge, but despite his earnest look, I couldn't tell much. I can do this with some effectiveness at a poker table and with witnesses and opposing counsel in trial, but this judge was just looking at me, clearly interested in what I had to say. 

 I decided not to grovel. The guidelines had been reduced, and my client needed an advocate that was unbroken in his belief that his client was innocent and that the fight would go on: 
"I can't give you a recommendation judge, based on this evidence" I said.  My client had voluntarily walked away from his employment where the crime took place after six uneasy months, and years before the FBI ever opened an investigation. 
"How do you sentence a man who walked away from the crime and didn't profit from it and made prompt restitution- years before the criminal case was brought-  when alerted to the fraud? How do you sentence a man that the government's own witnesses said they hid their crimes from? That's why they gave you the lifetime appointment your honor. Beyond advocating for the lowest end of the guidelines, I cannot bring myself to ever say my client deserves to be incarcerated." 

The Judge sentenced my client to the lowest end of the reduced guidelines, and now we are concentrating on the appeal. 

Unlike our (perhaps unrealistic) view of medicine, criminal law is often very intuitive. It is an amalgamation of human nature and legal statutes, and a defense attorney often is reduced to giving the client advice on how those two intersect: "I know you panicked, but that second shot really hurts our self defense claim once the assailant was down."

I have an optimistic view of my clients. I have rarely met one I did not like or could not find common ground with. But when a defendant in a white-collar case gets sentenced to prison, a defendant who like me is a professional and has a family depending upon him, the blow of a prison sentence is an unusually hard one to weather.  

Unlike the clinical training of doctors that teaches them to separate themselves from a patient's suffering or fears so they can operate or treat the condition, lawyers have no such training. We see lives ruined everyday for nothing more than bad decisions that have turned tragic.  

My client was sentenced. His mother and sister cried. I felt awful. He did fine and we all walked out of court to fight another day on the appeal.

I spoke in my initial post on sentencing about the pain of losing. About how all the wins blend in, but that I can acutely recall the smallest details of each loss. And how I carry those losses, some decades old, to this day. My client this month joins that unenviable list of clients for whom I could not derail the mammoth train bearing down on him called The United States Of America. It's a daunting task. 

But the fight is worth it, and I try and remind myself that the measure of a man is not how many times he is knocked down, but how many times he gets back up. 

PLR. 

MY BIG RED TRUCK

Most of my colleagues drive  Porsches, Mercedes, Lexus or similar luxury automobiles. Somehow there arose a tendency to judge a lawyer by the car she or he drives . I think it started in the early 1980’s when the proliferation of drug cases brought with it an infusion of cash, which in turn not only built a good part of Brickell Avenue, but resulted in Miami getting a hit TV show (Miami Vice) and lawyers walking around with ten and twenty thousand dollar  (or more) gold Rolexes on their wrists. Once the watch was on, and the new suits and shoes and fancy briefcases were purchased, the next item a lawyer needed to announce their  success was the Porsche or Mercedes.  People would naturally think “Wow- that lawyer must be successful, they drive a Mercedes” as if the price of a car related to the skill of the lawyer.  Of course the price of a car has as much to do with an attorney’s trial skills as does their suit or watch.  But one thing I have learned is that first impressions matter. 

Which brings me to my big red truck. It was 2005 when I was about to have my first son and my prior car was coming off a lease. And yes for the record, it was a Mercedes Convertible.  I never said I was less shallow than my colleagues driving Porsches and wearing Rolexes,  just more reflective about what this all means.

I had  (reluctantly) turned my Mercedes in,  and was driving around with my very pregnant wife and feeling a bit uneasy about the future. What I knew for sure is that while I felt as prepared for fatherhood as any new father could feel, I was not prepared to drive a Mini-van. As we drove from dealership to dealership and I was feeling worse and worse. Then we drove by a Nissan Dealership and there in the window was a Big Red Truck. I shouted for my wife to stop and pointed and she replied as you might expect: “Are you crazy?”

But my retort took the day: “We are having a boy and what little boy doesn’t want a big red truck?, and I became the proud owner of a big red Nissan Titan pickup truck. If only the guys on the docks in Sheepshead Bay, Brooklyn where I worked on fishing boats could see me now!

I enjoyed my Big Red Truck for many years and eventually came to enjoy life without a car payment. Then in 2011 I unexpectedly and suddenly lost vision in my right eye due to a detached retina. Suddenly I was faced with the prospect of not being able to practice the profession I had trained my whole adult life for.

There is a carefully orchestrated ballet when I am at the podium cross examining a witness. One eye is on the witness, one is on the questions I have prepared, one is on the impeachment material I have ready if the witness doesn’t give an answer I want or expect, and one is on the jury to see how they are reacting to the cross examination. So that is at least four eyes, and I am now down to one.

The result of my disability is that I am a markedly different lawyer today then I was five years ago, but not necessarily a worse lawyer. I have to prepare even more now for court, considering whether a particular portion of the evidence code will become an issue or whether a statute will need to be examined or argued. Thankfully in this day of electronic media, any text can be printed out to any size that I need to make it readable for me.  And because I cannot move as quickly visually as I once did, the timing and rhythm of the cross examination is much slower, as I spend more time finding my place in my notes as my eye moves back and forth between the witness and the jury and the dozen or so other things I am trying to keep track of. The slower pace means I have more time to consider the witness’s answer and formulate a question designed to break down their story. I am less reliant on my notes, and more reliant on whatever innate talent I may possess for these encounters. And I am happy to report that  I have been on a pretty good winning streak overall since I lost my eyesight.

I must report, however,  that my truck is much worse for the wear, especially on the right side and the front. One side affect of having one eye is that I cannot judge distances very accurately, so the front of my truck is missing a bumper, a victim to one of multiple times I hit the cement wall in the parking garage at work as I pulled into the space. And that nasty looking enormous scratch on the right side (my blind side) of the truck is due to me misjudging the distance between my truck and another truck which had some sort of truck-scaring metal poles sticking out from the side.  At this point, it is just not worth it to keep fixing a truck that I am going to continue to dent.

For those of you thinking about whether I should be driving at all, relax. I have the requisite extra side view mirror that the law requires, and the advent of the Uber App in Miami (the greatest car  service in the world) means that I am able to go anywhere at night and get a ride whenever I need it.

I am struggling to find the lesson here.

Nice things are nice to have. And clients expect their lawyers to dress nicely, and drive nice cars. That is just the way of the world. But the loss of my eyesight in one eye puts the fancy car and accoutrements of success in perspective, because the most important things in life- the smile of your child- the love of your family- the devastating cross examination- money cannot buy.

So I would like to end this blog post by taking a stand against materialism, and saying I will be that one successful lawyer that doesn’t care what he drives and has clients who hire him in spite of his run-down truck. I fantasize about  my beat up Big Red Truck entering into the lore of my practice. “He won this amazing case and then drove away in a truck I wouldn’t be caught dead in. You have to hire him, just don’t let him drive you anywhere” I imagine one client telling another as CNN And  CourtTV do profiles on the brilliant trial lawyer with this quirky habit the public finds endearing.

Yes, that’s how I want to end this blog post. But I can’t.

I couldn’t make this up if I tried.

You see, I am writing  this blog post from the Starbucks on US 1 in South Miami waiting for AAA to arrive because shortly after I pulled into the parking lot my nine-year old Nissan Titan began to shake uncontrollably and then died.

So in the next few weeks, if you want a ride in my new Infinity- chosen because it has the most advanced collision avoidance system I could find, just ask.

PLR.