When the Lawyer Fails
Liptak's Sidebar column tells about the sentencing of Army Sgt. Patrick Lett to 5 years. He was represented by this Cortello, and despite Judge William H. Steele's expressed desire to go below the mandatory minimum due to aberrant behavior, he was stuck.
Except he wasn't stuck. An army buddy, Matthew Sinor, who was in his second year at Ohio State, went to the sentencing to support his friend. When he heard the sentence, he wrote to the judge, and the lawyers, to advise them that Lett was safety valve eligible.
Realizing that he had an out, the judge, a former marine, corrected his mistake and sentenced Sgt. Lett to time served, 11 days. Great, right? Except, you technically can't do that.
The government, in all its appreciation and generosity for Sgt. Lett's putting himself in harm's way, appealed. The 11th Circuit reversed, holding that while Judge Steele could have sentenced the defendant to 11 days, once he sentenced him to 5 years, he could not change his mind.
So what did Glenn G. Cortello have to say about all this? Did he thank Matthew Sinor? Send him a bottle of champagne? Offer him a job upon graduation? Show some sign of humanity and humility?
Sergeant Lett’s defense lawyer, who had been paid $10,000, did not appreciate Mr. Sinor’s intercession, which he called “insulting.”
“If you think five years was a bad job on my part, then you wanted a magician and not a lawyer,” the lawyer, Glenn G. Cortello, wrote to Mr. Sinor in an e-mail message. “When you get out of law school and have practiced criminal law for over 20 years, I’ll discuss it with you.”
Apparently, Cortello was a very, very small man. Not only had he blown the safety valve, making neither an attempt to have his client "valved" despite the mandatory minimum, nor objecting to the PSI or offering any argument to even make the effort to help his client, but he then ridicules and abuses this kid law student who did the job that Cortello was paid to do.
Now, I grant you that this must have been an unbelievably humiliating experience for Cortello, Mr. Big-Shot 20 year lawyer, being showed up by some kid law student. But then, he earned it through his ineffective assistance and disgraceful post-hoc attack.
But the guy couldn't be that big a jackass, you say? Once he calms down, he'll recognize the error of his ways, his massive incompetence, his misguided antagonism? Nope.
On the phone Monday, Mr. Cortello said Sergeant Lett “got lucky” with his five-year sentence. “They would have been justified in giving him 20 years,” Mr. Cortello said.
If only Liptak had included the phone number so we could keep Cortello in our Rolodex for future referrals.
Some might point out that the judge neglected to consider the safety valve as well, though from the Circuit opinion, the judge believe himself constrained by the mandatory minimum based on a pre-Booker analysis of his authority, which he was persuaded by Sinor no longer applied in a post-Booker world. Also, the plea itself was considered pretty good, since the local prosecutors rarely allowed a defendant to plea to distribution when charged with a conspiracy. So the Cortello had accomplished a significant coup in getting the plea. But in light of the safety valve, one accomplishment just wasn't good enough.
And now for the incredible blogosphere hook. So who taught Matthew Sinor sentencing law? None other than Doc Berman of Sentencing Law and Policy! Doug Berman is now doing a pro bono cert. petition, though I can't see any real issue with the 11th Circuit's decision. It sucks, but that's the law. On the other hand, the defendant has not been resentenced, so he remains out on supervised release under the original sentence. Thus, it's not like he's sitting in jail while awaiting the court to reject the petition.
It strikes me that this is ripe for a 2255 motion (28 USC 2255) on the basis of ineffective assistance of counsel. There's discussion over at Doc Berman's blog about how they can get to the 2255 after the Supreme Court if they don't win. While that's true, and the defendant remains out, it was made clear by the sentencing judge that he wanted to sentence this defendant to time served. I wouldn't be so cavalier about this detail. Not all judges would have seen things quite the same.
What if Judge Steele is hit by a truck? Then, the slam-dunk 2255 could turn into an iffy proposition. Times change. Things happen. You have a judge prepared to give you the outcome the defendant desires and should get. Having fun playing lawyer in front of the Supremes, unlikely to ever reach the Supremes in this case, could result in losing the judge you want and need. That would be a disaster, and a shame.