I’ve long thought the most significant criminal justice reform imaginable would be simple to impose: Require all lawmakers and judges to spend some significant period of time, let’s say six months, behind bars as an inmate. Make them taste the product they are dishing out.
After watching the federal sentencing of a client of mine, Donna Bello, I think our Solons should be required to spend not just six months, but a full year, behind bars. A year, they might learn, is a long, long time.
Bello was just sentenced to six years in prison by a federal judge. She was involved in gifting tables in the shoreline area. Her co-defendant, Jill Platt, was sentenced to four and one-half years. Both Ms. Bello and Ms. Platt were convicted by a jury.
Six years for a grandmother and hairdresser. The sentence imposed reflected a staggering, almost other-worldly, sense of unfairness. I’ve yet to see a predatory lender sent to jail for scamming people.
The federal government prosecuted the women, together with a third defendant, B.J. Hopkins, as though they were the heads of a massive criminal syndicate. Ms. Hopkins, who pleaded guilty, faces a sentence far less than Bello’s and Platt’s; she got a discount for waiving her right to trial.
The government granted immunity to those from whom it needed testimony. It relied on secret recordings. Reluctant women were summoned to grand juries, and, in some cases, threatened with prosecution. All this because the women obstructed the Internal Revenue Service’s efforts to determine just how much taxable income participants in the gifting tables received. Just in case you did not know it, that is federal crime.
Women were invited to contribute $5,000 to participate in a table. Upon payment, they entered a rank of seven other women. Eventually, each entrant was expected to make it to the top of a table, ascending through the initial rank of eights, then four, then two, arriving at the top, at which point they would receive entry gifts from new women. In theory, a full table netted $40,000 in contributions to the top woman, a gain of $35,000.
The tables were far more than a means of exchanging money. One witness after another testified at trial that they enjoyed their time on the tables; some said they would continue to participate if they would not get in trouble. You could see how nervous the witnesses were offering such testimony as IRS agents sat in the courtroom taking notes about who was naughty and who was nice.
No taxes were paid on the money exchanged on the tables. Participants were encouraged to make and receive funds in cash, and to avoid banks. In other words, monies changed hands without passing through the paws of the federal government.
When the government bleeds, it bleeds green. You mess with its bloodstream at your peril. I wonder how many certified public accountants are guilty of similar misconduct for counseling aggressive tax avoidance strategies.
The table participants were also charged with wire fraud. They were accused of telling new participants it was all legal, and that lawyers and accountants had told them so. Fraud is not normally a federal offense, but because the defendants used the Internet to send messages, their fraud became a federal offense — the internet service provider they used had no server in Connecticut, and hence the communications crossed state lines. Federal jurisdiction extends, you see, to interstate commerce.
But here is the odd thing about the case. Each and every participant in the tables faced potential criminal prosecution as co-conspirators. The law of conspiracy is expansive: When two or more people agree to commit a crime, and any one of them makes an overt act to accomplish the objective of the conspiracy, all are equally guilty. As often happens, all of the co-conspirators need not even know one another.
At trial, dozens of witnesses were called. When the government wanted testimony from someone worried about prosecution, they would grant immunity from prosecution. When our witnesses worried about prosecution, the government refused to grant immunity, and the trial judge permitted the witnesses to avoid testifying by evoking their Fifth Amendment right against self-incrimination. The hinges to the door of justice permitted the door to swing only in the government’s favor.
Under the arcane laws governing federal criminal sentencing, complex guidelines resulted in a potential sentence of 11 to 14 years in prison for each defendant. Fellow defense lawyers were in shock upon hearing those numbers. The guidelines were supposed to limit judicial discretion in sentencing. Instead of discretion, federal judges are now required to engage in a bizarre algebra of despair.
Each federal offense has a base level. In fraud cases, that is number is six or seven, depending on the offense. Then points are added depending on how much money is at stake. More points are added based on the number of victims. Enhancements might apply if you earn more than $10,000 from criminal conduct but fail to report the illegal gain to the tax man. The guidelines manual is a ridiculous cookbook. The total points yield discrete terms of imprisonment. It is madness.
The court held a hearing and heard evidence about what the proper guidelines should be. The result was a recalculation, resulting in a sentence of eight to 10 years for Ms. Bello. Those numbers were still stratospheric, especially for a defendant with no criminal history.
As crazy as it sounds, the Supreme Court recently held that the sentencing guidelines are no longer mandatory. Even so, judges are required to do a guidelines calculation and consider the recommended sentence before imposing sentence.
The judge sentenced Ms. Bello to six years, a non-guidelines sentence that was, in some twisted sense, supposed to reflect leniency.
I watched the imposition of sentence as though I were in an airless room. Six years in prison. The crime? Impeding the IRS’s ability to determine taxable income; misinforming others about IRS gift tax exemptions.
Give me a break. Predatory lenders crash the economy, and we bail out bankers. But we call justice sending grandmothers to jail for long sentences in which only willing participants were hurt, if they were hurt at all. The “victims” were characters straight out of P.T. Barnum; only a handful surfaced at the sentencing hearing, hands out, asking for their money back.
Clarence Darrow once said that there is no justice, in or out of court. He was right, of course. The sentences in the gifting table case are a mockery of justice.
The congratulatory phone calls started to arrive before I made it from the courthouse to my car. My client, a physician, had been found not guilty of rape. One newspaper quickly ran a banner headline announcing the verdict. The Internet broadcast the result immediately.
But I cannot call it a victory. While we beat the top charge in the case, the jury convicted my client of misdemeanor sex assault and tampering with a witness, the latter a felony carrying up to ten years in prison. As if to signal his intentions come sentencing day some eight weeks hence, the judge hammered my client by setting a $3.5 million post-conviction bond.
It is never a win to walk out the courthouse door without your client.
Trial is what game theorists call a zero-sum game. One side wins, and the other side loses. Trial is a huge risk.
Observers sometimes apply sporting analogies to trial. Defense lawyers debate what constitutes a win. I’ve heard lawyers say they won a case when they beat the most serious charges.
I recall a murder case several years ago that I tried twice. The client shot one of his wife’s friends in the head point blank during a heated argument in the family kitchen. We claimed self-defense. In the first trial, the jury could not agree on a verdict, so the case was mis-tried. In the second trial, the jury voted not guilty on murder, but then found the client guilty of the lesser charge of manslaughter with a firearm. The client was sentenced to a total sentence of 40 years in prison. It would be a peculiar form of sadism to call this a win.
Lawyers are competitors. The prosecution stands on one side; the defense on the other. The resulting combat yields deep passion. Like athletes, both sides seek victory.
The sporting analogy fails in the criminal courts. Trials aren’t competitions placing teams on a level playing field. The state presents evidence intended to prove a defendant broke the law. Sometimes the state has overwhelming evidence; sometimes the evidence is slim. Experienced lawyers know that trial is a matter of playing the cards you are dealt. When the other side is dealt three aces, you struggle any way you can to produce a winning hand, even if the odds are against you.
In the doctor’s case, the state charged sexual assault in the first degree, claiming he had raped a client during an office visit. This is the most severe form of sexual assault.
Another charge was sexual assault in the fourth degree. This involved simple unwelcome touching of an intimate part. The claim was that he had placed his mouth on her breast. The tampering charge involved the claim he had tried to offer the complaining witness money through a third party. The client denied all three charges.
My client’s DNA was found on the woman’s breast in a sample composed of saliva. His spermatozoa were found on her clothing, and my client’s DNA was found on her jeans, and on her body. None of my client’s DNA was found inside the woman.
It was a hard case for the defense. The cards dealt made the road to an acquittal difficult.
The evidence commenced. The jury heard about the DNA. The judge let them hear from two other patients who claimed the doctor had assaulted, but not raped, them. When we tried to bring to light the fact that the alleged victim had the DNA of other men not just on her, but inside her, a law known as the rape shield law closed the door in our face. I fumed that other accusers of my client could testify against him while the law permitted the fiction that the victim was without sin.
The state’s crime lab witnesses gave often silly testimony, testifying that when the lab was decertified and lost the right to submit DNA results to national databases, it was a result of a mere administrative error. And then a police officer destroyed evidence, leading the trial court to prevent officers from offering some testimony. The alleged victim offered testimony that was simply impossible to believe. Even the pastor who claimed my client offered money to the victim’s family looked like a fool: He gave pinpoint testimony with perfect recall of the times my client called him years earlier, but he could not recall the contents of John 3:16.
In criminal cases, the decision to testify belongs to the client. A lawyer can advise, but the client decides. The doctor chose to testify, fighting for his life from the witness stand. He testified that she came on to him with amorous intent. He was mortified by her conduct. He never kissed her. He never touched her inappropriately. His lips never touched her body.
One juror interviewed after trial by a newspaper in Manchester says that decision to testify cost the client an acquittal on the tampering charge. He told a reporter the client “hung himself” with his testimony about the preacher, who, the juror described as “all over the place” and incredible.
“I don’t know what I will do if the doctor is convicted,” the young lawyer trying the case with me said. She is new to the law. She’d not yet had to put her head on the pillow at night wondering how a client was adjusting that very moment to a first night in prison.
“How you handle hardship defines you,” I told her. “You never get used to seeing a man or woman led away in chains. You always fight.”
“I am not so sure,” she said quietly. There were almost tears in her eyes.
So did we win or lose this war on behalf of a doctor who maintains still his innocence?
Trial is no more a sport than life is a game. Sometimes all you can do is face the gathering darkness with all the hope you can muster. No one wins at the business of living. It is appointed to all once to die, the good book says.
The only conviction that sustains me as a criminal defense lawyer is simple: “The fight is all there is.”