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.