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.
What made this sentence so long was the hopes it dashed, the expectations it shattered. The dark arts of justice were on display. When court adjourned for the day, I almost heard wolves baying. It was eerie, even savage.
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.
There's a new security rule in the state courthouses. At least I think there is a new rule. As with so many security measures, practices across the state are inconsistent. It's maddening.
I was asked the other day in Bridgeport to show my bar card. The request surprised me. So far as I know, bar association identification cards aren't mandatory. The only reason I carry one is that it is virtually impossible to get into an out-of-state prison without one. (Unless, of course, you commit a crime in that state; then leaving is difficult.)
I generally try to oblige the marshals. They are overworked, underpaid and stressed.
"Why?" I asked, surprised by the request to see my bar card.
"You will have to take your belt off if you don't have one."
I gave my best WTF look.
"New rules," I was told. "We know you are an attorney, but …"
I zoned out on the rest of the answer, and showed the card.
I passed through metal detectors in state courthouses in several other cities that week. No one carded me at those doors.
So what gives?
Some rules are enforced in every courthouse. Did you know that in order to visit an inmate in one of the state's lockups, you need to sign a form acknowledging that you understand that the prisoner has a right not to be sexually assaulted? It's one of the most asinine things I've ever seen.
Just how many lawyers were visiting prisoners for the purposes of scratching the primal itch? What's more, don't the geniuses who create these forms realize that most visiting areas in the courthouse lockups separate prisoners from visitors by a Plexiglas screen and wall?
Just how randy do the big shots making these rules think we lawyers are?
Things are just as crazy in the federal courts, but, being federal courts, folks have more time on their hands, and they take violation of the rules as a federal offense.
After being carded in Bridgeport one day in the state court, I wandered over to federal court. No bar card could save me the requirement of taking off my belt to pass it through the metal detector. In the meantime, federal prosecutors strolled on by as if they own the place; in a manner of speaking, I guess they do.
My visiting privileges for federal detainees were nearly suspended several years ago. When requested to sign in to visit with a prisoner in a no-contact holding cell, I'd routinely sport with the form.
What prisoner was I visiting? I generally wrote in George Bush, or the name of some other prominent Republican. And I was from the firm of Beelzebub, Lucifer and Satan. On creative days, I'd sign in as Clarence Darrow, the same name I write in on my ballot in every congressional election. (Rosa DeLauro has a lock on my district and doesn't need my vote.)
A nasty marshal must have actually read the sign-in sheet one day, after years of such mischief. I was told that if I did it again, I'd be in trouble, big trouble.
Sometime soon I suspect we'll have secret handshakes and mandatory decoder rings we'll need to use to enter the courthouses of the state. It all seems silly and demeaning.
I understand the need for courthouse security, but, candidly, I can't recall the last time a lawyer tried to sexually assault a client in a no-contact cell, or tried to smuggle a weapon into a courtroom.
Of course, I don't exercise my Second Amendment right to carry a firearm. If I did, I suppose I'd make a federal case of all this. In the meantime, I'll just grin and bear the foolishness, and try not to oppress the poor marshals assigned the task of enforcing this churlish nonsense.