The Dark Art Of "Justice"

I envy physicians their proximity to death. It goes without saying that those who master the ups and downs of the life cycle must learn a thing or two about bracing folks for the end of life. I imagine that physicians-in-training get some counsel on how to advise a patient that his days are numbered, or to tell a family their loved one is gone, now forever absent.

We lawyers aren’t so lucky. No part of our training deals with the dark arts of despair, yet we too shepherd folks through devastating transitions. We too sit with families and individuals in crisis.

The dark lessons we must learn to survive come at a cost.

I was reminded of this last week when I sent a young man off to prison for five years. It wasn’t a long sentence, as criminal sentences go — I’ve seen men sentenced to multiple life terms, as though they will be revived once they die just so that they can start to serve another sentence.

The client was a young man, located in California. He and others operated a mortgage scam. They’d cold call a homeowner, promise refinancing and charge fees for which clients too often got nothing. The judge called their behavior predatory. Ordinary people lost millions of dollars to this scheme.

But despite their outsized ambitions, these defendants weren’t too big to fail. They were indicted, shipped to Connecticut for trial, and all pleaded guilty before trial.

My client took an extraordinary risk. He agreed to cooperate with the government, telling all about what the group had done, providing the government with data the government did not have.

He was, what is called in the lingo of criminal defense lawyers, a cooperator.

The government reached out immediately to see if he would cooperate — dangling a cooperation agreement and the promise of leniency at the time of sentencing.

There are lawyers — I call them half-lawyers, actually — who refuse to enter cooperation agreements with the government. I’ve actually seen lawyers market themselves by boasting that their clients never cooperate.

That’s like a cancer doctor crowing that his patients won’t undergo chemotherapy.

A lawyer’s job is to explore every option available to his client, to reduce the risk of dire consequences by any lawful means. Lawyers refusing to explore the benefits of cooperation are announcing they are content to do only a part of the job required.

So my client signed a proffer agreement. He waived his right to remain silent and agreed to talk to federal agents and the prosecution. In exchange, the government agreed not to use his words against him, so long as he told the truth. If he lied, he could be prosecuted for making a false statement.

It’s a deal with the devil that no lawyer enjoys making.

In my client’s case, the proffer we made led to a cooperation agreement. My client pleaded guilty; the government agreed to let the court know about my client’s “substantial assistance” to the government.

In theory, this meant that at sentencing the judge would be free to impose a sentence less than what he would otherwise receive.

A complex cookbook governs federal sentencing proceedings. Each crime is assigned a number, called a base offense level. In a fraud case, you typically get seven points right off the bat.

Numbers are then added based on the loss caused by the crime, called, prosaically enough, the loss amount. In a multimillion-dollar fraud, it’s not uncommon to add 16 or so points to the base level. Then there are points added if there are lots of victims, if the fraud was accompanied by sophisticated means, if you were a leader in a conspiracy. The list goes on and on — the guidelines are a small phone book.

Adding these numbers together and then accounting for a defendant’s criminal history yields a total offense level. A chart then recommends a set number of months based on that level.

Nothing in this calculus is mandatory, mind you. Our courts simply tell judges to “consider” the sentencing guidelines when crafting a sentence.

A cooperation agreement invites a judge to sentence well below the guidelines. How much below? It’s up the judge.

There are 94 federal judicial districts in the United States. All of Connecticut comprises one such district. Years ago, Connecticut’s federal judges were the most lenient sentencers in the country in white-collar cases.

One senses the Connecticut bench is now uncomfortable with being an outlier, at least insofar as ordinary defendants are concerned.

The well-connected still get breaks. A former federal prosecutor turned highly regarded criminal defense lawyer, James Pickerstein, was recently sentenced to a month in prison after pleading guilty to stealing hundreds of thousands of dollars from a client.

My client wasn’t so lucky. He got almost five years after agreeing to become the government’s eyes and ears. Suffice it to say, he feels betrayed, as do I.

The recommended guidelines sentence for this young man was 78 to 97 months. Surely, we hoped, the extent of his cooperation, and his genuine remorse, would earn him a steep discount.

It didn’t. He was sentenced to 58 months.

We were oncologists of a sort, recommending a risky treatment we hoped would get him home soon. Instead, the treatment barely dented the tumor this prosecution had become. There weren’t words sufficient to console the client.

After sentencing, I sat with another lawyer to discuss the case. We were stunned. A young life was wasted by a heavy sentence. The client’s efforts to redeem himself were mocked.

I thought of J. Robert Oppenheimer, one of the fathers of the atomic bomb. When he watched the first test explosion of his creation, he uttered the opening line of the Bhagavad-Gita: “Now, I am become Death, the destroyer of worlds.”

The law yields such sentiments. Justice is but a name we drape over the holocausts we tolerate daily in our courts.

What a world.

Related topics: Journal Register Columns
Comments (4)
Posted on September 20, 2016 at 5:46 pm by Portia
dark side
As I've said before, the courts are a dirty, dark place. Don't know how you stand it.

Posted on September 19, 2016 at 10:02 am by G
Hardly ever any accountability for judges rendering these stiff sentences. You were onto something when you once said that any lawmaker/judge/etc. should spend 6 months in prison before deciding what constitutes a just prison sentence. In this case, was 40 months not enough? 30 months? Was one damn year not enough? It actually makes me sick, which is why I chose not to practice law. Too many evil self righteous people in the criminal system and in this day and age with people always using technology, and lacking critical thinking skills, people just see stiff prison sentences and yawn. This love and need for prisons is disgusting.

Posted on September 8, 2016 at 6:45 pm by -b9
What we do on earth determines our destiny. So...

Why vote for a psychotic bulldyke, dude?

Posted on September 8, 2016 at 11:37 am by Edward Volpintesta
improving the way malpractice disputes are resolved
September 8, 2016
The New Haven Register
To the Editor,
I admire Attorney Norm Pattis’ speaking out on what he sees as unnecessary harshness in the criminal justice system (“Norm Pattis: The dark lesson we must learn to survive come at a cost”, New Haven Register, Sept. 7).
As a physician I see a similar harshness that is uncalled for in the way malpractice disputes are resolved.
Too often, unwarranted suits are brought against physicians. I don’t know the exact number but my experience speaking with other physicians is that it is considerable.
Many times physicians settle these suits to just to bypass the time and stress of fighting them out in court. For sometimes it can take three, four, or more years for a suit to be settled. During this time doctors undergo great anxiety wondering how it will affect their reputation and livelihood.
Unwarranted malpractice suits are a serious distraction for doctors. They can cloud their judgment and their ability to treat patients properly.
The nature of physicians’ work is often unpredictable. They frequently make decisions based on incomplete information. And when the outcomes are not good, it is tempting for some attorneys to search out and exploit and even distort any possibilities that might be accepted as actionable by the malpractice system.
The unnecessary belligerence and combativeness that are the stock-in-trade of the malpractice legal system and the harm they cause could be minimized by setting malpractice disputes in special health courts overseen by judges trained in and dedicated entirely to medical malpractice.
They could deliver fair and reasonable compensation (when appropriate) in months instead of years, cut down on attorney and court costs (which consume about 60% of malpractice payouts), and lessen hostilities for the parties involved.
Moreover they would lessen the pressure on doctors to practice defensive medicine (the ordering of unnecessary tests and consultations to ward off allegations of negligence). Contrary to what may be expected, while doing more tests adds greatly to health costs, it does not improve patient care.
Health courts have been ignored by lawmakers for too long.

Edward Volpintesta MD
Bethel, Ct 06801
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis


Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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