I’ve become preoccupied lately with the education of young doctors. Doctors must be better equipped than lawyers to deal with death and diseases. Nature fails us all in the end; doctors cope with the consequences.
Lawyers also deal with life transforming, and, sometimes, life ending, situations. We paper over these rough places with happy talk about justice. A patient facing a horrible cancer diagnosis wants a miracle. Few patients get them. Doctors counsel about what’s possible in the unforgiving world of cause and effect.
Lawyer’s also counsel, but the causes and effects we discuss are almost always matters within the control of human agency. In criminal plea bargaining, for example, it is the prosecution that must decide what is and is not an appropriate response to the conduct it finds objectionable. No tumor runs its course in the life of a criminal defendant.
Prosecutors like to pretend otherwise. They prattle about “accountability” as though there were some vast cosmic equation that related actions and responses in some discernible manner. But that’s just a fantasy. In a legal setting, outcomes are a matter of judgment and will. You can bargain with a prosecutor in a way that no cancer patient can with a malignancy.
But how do you counsel a client to accept a plea bargain that will destroy his or her life? Defendants often demonize the prosecution, blaming the government’s representative as the very locus of evil itself. The prosecutor is the one controlling the growth rate of a tumor. The prosecutor decides how much of a person’s life must be amputated in the name of justice.
I’ve seen folks make horrible decisions because they cannot face the consequences of a plea and insist on trial, hoping that the jury will deliver a miracle. In one case, a man rejected a walk out the door in exchange for a plea to a minor charge. At trial, he beat the most serious charge, but was convicted of the less serious charge. The state then looked for serious time behind bars.
Why? Because the man rejected a plea bargain and forced the state to try the case. I’ve never understood the twisted logic of the trial tax. The state’s costs of operating are fixed. A prosecutor and his investigators get the same pay, day-in and day-out, for their dismal duties. Surely they are not punishing a person for making them earn their pay?
Judges, even federal judges, also truck, barter and trade in the dismal science of taxing those defendants who insist on their right to a trial. This past week, the three defendants in the federal gifting trial prosecution were sentenced. Of the scores of women participating as co-conspirators in this venture, the government chose to prosecute but three. (Its principal beef against the tables was that participants impeded the IRS’s ability to ascertain taxable income, a serious crime to a tax man equipped with the presumption that if a dollar changes hands, the government is entitled to a piece of it.)
Two of the women rejected plea offers and went to trial. Both were convicted. (One was my client.) At sentencing, the women, both grandmothers, received sentences of six years and four-and-one-half years. The day after their sentences were imposed, the third defendant, who agreed to plead guilty, was given a walk by the same judge. The message could not have been clearer: You get punished in our courts for exercising your constitutional rights. It’s a sick and twisted message.
So now the grief work of counseling clients who have lost all in contests with destructive forces. They faced the cancer of prosecution, and now the social amputation of incarceration. They went to lawyers for advice and counsel. They made the decisions they could live with at the time, but now must endure unspeakable loss.
We participants in the game call it justice, but it looks and feels so much more like oncology, the words used to describe the decisions, the choices, by prosecutors and judges sound like empty noise. We lawyers are left with empty briefcases and heavy hearts to provide counsel when catastrophe strikes.
What do doctors do in such times? What can they teach we lawyers?