Guilty or Innocent, Pick One

Lawyers make lousy defendants.  They can’t keep their nose out of things, and they have the darndest time letting go.  But eventually, every criminal defendant has to make a choice of whether to stand firm and assert his innocence, and face the great void of uncertainty that comes with it, or cop out. 

Les Jacobs is no different.  Via the Cleveland Plain Dealer :

Jacobs, 66, of Gates Mills, is accused of under-reporting his income from the Thompson Hine law firm by more than $250,000 from 2004 to 2007. That resulted in the underpayment of about $75,000 in income taxes.

Jacobs is a Harvard Law School graduate and the former president of the Ohio State Bar Association. He was recently named the 2012 Cleveland Litigation-Antitrust Lawyer of the Year by the Best Lawyers in America publication.

Jacobs has worked for Thompson Hine for 43 years, and is a senior partner in the firm’s Competition, Antitrust and White-Collar Crime practice group. He laments in his letter that “we live in an era when a legal problem for even the most obscure lawyer seems to provoke public interest.”

Les Jacobs was a lion of the bar, the sort of lawyer who gets named to blue-ribbon committees, who commands the respect of lesser lawyers who someday hope to be like him.  And apparently, a lawyer who screwed around with his taxes. It’s not inexpensive to live like a lion in Ohio.  And the story doesn’t even mention that he was past president of the Ohio Bar Association.  A lion. Roar.

One might think that as a lawyer with 43 years experience practicing white-collar crime, Les Jacobs would have a pretty firm grasp on how best to handle such matters as a plea.  You see, Jacobs pleaded guilty, and quickly found out why lawyers make lousy defendants.

Cleveland lawyer Leslie “Les” Jacobs pleaded guilty to a federal tax charge Wednesday after an exchange with a prosecutor over a letter Jacobs sent to friends, colleagues and clients about his case.

At a hearing in U.S. District Court, Assistant U.S. Attorney John Siegel took issue with the letter, which he said was worded in a way that could leave people with the impression Jacobs hadn’t done anything wrong and was coerced into pleading guilty.

Jacobs said he regretted that his words had been misconstrued.

There is a laundry list of things one shouldn’t do if you’re going to seek a downward departure based on acceptance of responsibility.  At the top of the list is denying responsibility. In writing.

The Oct. 10 letter, a copy of which was obtained this week by The Plain Dealer, characterizes Jacobs’ legal problems as resulting from a four-year dispute with the Internal Revenue Service over tax returns.

“The reason I write now is that I have reached a point where continued debate is pointless,” he states in the letter. “The government has been relentless; the levels of hostility and mutual recriminations have escalated in intensity; and the stress for [wife] Laurie and me has become intolerable.”

And so what?  Is he pleading guilty because he is guilty, and accepting responsibility for breaking the law, or is he capitulating to the overwhelming might, the “hostility and mutual recrimination,” of a relentless government? 

This is the nature of federal practice, and you would think that Les Jacobs knows this well enough not to screw up his deal.  A critical element of a plea under the sentencing guidelines is the acceptance of responsibility, and you can’t ask for it while claiming that your plea isn’t based upon your guilt, but rather succumbing to the stress and pointlessness of fighting.  You can’t have it both ways.

Jacobs claim is that his letter is being misconstrued.  That’s unlikely to win him any friends in the courtroom.  It’s far more credible that Jacobs is trying to salvage his lost dignity, to not appear as a disgrace to his friends and colleagues. Heck, he just won some lawyer of the year prize by the Best Lawyer in America.  Now you know how much that crap is worth.

Maybe Jacobs was in a financial hole, and he skirted the law to try to dig his way out.  Maybe he just can’t come to grips with the fact that his great lion roar is faded to a whimper.  Maybe he truly believes he did nothing wrong, but can’t face the uncertainty of trial and isn’t inclined to take the chance.  For all I know, his wrong wasn’t so wrong, and he just doesn’t have what it takes to stare at the jury foreman at the end of a trial.

But none of this, true as it may be, changes what he should also know as a 43 year lawyer who was the head of a white-collar crime department.  You can’t deny responsibility if you want the break at sentence.  And at the moment, there should be nothing more important to Les Jacob than getting the lowest possible sentence on his plea.  But then, lawyers make lousy defendants.

7 comments on “Guilty or Innocent, Pick One

  1. SHG

    An Alford plea is a concession of guilt without an admission of wrongdoing. This doesn’t relate to the plea, but to the sentencing guidelines.  A defendant gets a two point reduction under the federal sentencing guidelines for “acceptance of responsibility,” aside from merely pleading guilty.  This is incorporated into the plea agreement.

    So when the defendant fails to accept responsibility, or more importantly, affirmatively denies responsibility, the prosecution’s position changes, as the defendant has failed to live up to his part of the plea agreement. The defendant is still guilty, and still gets sentenced, but he doesn’t get the benefit of the two point reduction set forth in the plea agreement.

  2. Dan

    Does anyone happen to know if he was represented by himself, another white collar crime department head type, or, for lack of a better term, a real criminal defense lawyer?


    One of the top 5 defenses in a white collar criminal cse is “so what?” “Nobody got hurt.” I think the problem here is the defendant made the lawyer’s argument, and unfortunately, it’s not for the defendant to make. But the defendant is a lawyer and thus, in explaining his crime, made the “I’m not going to debate this anymore” mistake with the feds in penning his letter to friends.

    Most white collar defendants, especially lawyers, believe that the accusation of a crime in response to their accounting errors or oversights (or intentional fraud) is a “civil” matter that should have been resolved with a check – sometimes they are right. But when you plea guilty in federal court – as you note, its time to play the role of the guilty.

  4. Andrew

    PACER lists five attorneys for the defendant, including Brian P. Downey, Jennifer E. Schwartz, and Niki Z. Schwartz of Schwartz, Downey & Co., and John C. Goheen and Frederick N. Widen of Ulmer & Berne. Google away.

  5. Billy

    Nikki Schwartz and Brian Downey are extraordinary top-tier lawyers. I can not imagine, Nikki leaving Jacobs unprepared in any respect. I suspect that this was Jacobs’ own pro se narcissistic freelancing. It’s the classic fool for a client, fool for a lawyer … An earlier article indicated that the lawyer from Ulmer Berne was taking the front seat, maybe Nikki, et al. got too expensive? The bottom line is that Jacobs choice of words in his ill-advised letter to friends, family and former colleagues will likely cost him extra days at Morgantown, WVA. or where ever. No matter how unjust the feds seemed to Jacobs I can not envision anything worth saying that would result in one extra day in federal custody.

  6. Ted Adams

    “the sort of lawyer who gets named a a member of blue-ribbon committees”

    Well, maybe.

    Per the Cleveland Plain Dealer article of 10/13/2011:
    “Rita Klein, a spokeswoman for the Cleveland Metropolitan Bar Association, challenged the accuracy of Jacobs’ online Thompson Hine biography, however, insisting he is not a current member of the Cleveland Bar and does not hold any positions on any of its boards or committees. She said, contrary to his biography, he has not served on the Judicial Selection Committee during the past 15 years, and has not chaired the Judicial Election Monitoring Committee since 2006.”

    Mr. Jacobs appears to have had reality problems in other areas than just reporting on his taxes.

Comments are closed.