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.
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.