Slater at WSJ Law Blog posts about the pre-sentence submissions for Mel Weiss, whose plea deal was nothing short of spectacular.  I was going to steal Slater’s title just to get back at him, but it sucked so I’m giving him a pass on this one.

The deal was cut, but the work isn’t done.  Now the government and defense need to hash out the actual numbers.

Weiss, the former head of the law firm now known as Milberg LLP, pleaded guilty last month to racketeering conspiracy in connection with the firm’s alleged improper payments of kickbacks to class-action clients. He is slated to be sentenced on Monday. Prosecutors are seeking a 33-month sentence while Mr. Weiss would like the judge to impose a term on the lowest end of the range in his plea agreement – 18 months, with at least half of that period either in community service and/or home confinement.

This is where the pre-sentence memorandum and letters come into play.  Up to now, Mel is just a defendant who committed a crime.  Now exactly the image that we try to instill in the judge’s head as we argue for bottom of the guidelines or less.  This is when the judge needs to see a three-dimensional human being.  He already knows the defendant did wrong; now it’s time to show that he’s done right in his life as well, that he’s helped others, meant something to people, served humanity in some way that mitigates the harm that brought him there.

Team Weiss has submitted 275 letters on Mel’s behalf.  That’s a lot of letters.  Whether it’s too many, or just the right amount (not a chance in the world that it’s too few) is a matter of content and context.  Slater has read through the letters, and this is what he found worthy of mention:

Collectively, the letters speak to the traits of kindness, integrity, as well as remorse. Several mention work on behalf of Holocaust victims, while others mention specific acts of generosity. Donald Kempf, the former chief legal officer at Morgan Stanley says that after an unexpected on-the-street encounter, Weiss offered to help Kempf find a certain kind of watch. “And he did.”

According to a letter submitted by a friend and art dealer in Sun Valley, Idaho, in a “spontaneous” gesture while in Vienna, Weiss bought the art dealer’s wife an expensive pair of boots. Weiss also submitted a letter, in which he asks to be allowed the chance to “use the skills I have developed to help others and hopefully help undo the damage I have caused.”

An interesting juxtaposition is presented.  Helping Holocaust victims versus finding some rich guy a watch, or buying an art dealer’s wife a pair of boots?  The former is the sort of thing that shows the other side of the defendant, the one that the judge should be apprised of before lowering the boom for the crime.  But watches and boots for rich people not only fail to meet the test of fleshing out a person’s humanity, but smack of elitism, shameless waste and misdirected “kindness”.  How many homeless people were stepped on while Mel was shopping for that antique Rolex Daytona?

One of the problems with letters of support is “damning with faint praise.”  If defense counsel feels that the best that can be said of his client is that he bought an art dealer’s wife a pair of boots, then this guy is a creep.  It’s not that there aren’t good things to be said, but why contrast the good with such counterproductive letters?

Reading through all these, we were of two minds. One was that Mel Weiss really does sound like a pretty good guy. The other: Is this going to have a whit of difference on his sentence? It might, says Douglas Berman, the author of the Sentencing Law & Policy blog. “It’s like chicken soup,” says Berman. “You don’t know if it’ll help, but it probably can’t hurt.”

That’s not what I was thinking at all as I read Slater’s piece.  When a pre-sentence submission is done well, it has a significant impact on the judge’s view of the defendant.  It may not mean that he goes below the guidelines, but it provides a strong basis for obtaining the best possible sentence. 

The problem here is that given the very high number of letters, and given that some of them, at minimum, fail to serve the defendant’s best interest at sentence, the submission can backfire.  It can just as easily show that a defendant who has achieved as much financial success as Mel Weiss has done remarkably little to help society or humanity.  It portrays a greedy, self-serving human being, whose idea of helping others is throwing some cash at them, provided they are in his “league”.  Not exactly endearing.

So it’s not at all like chicken soup.  It most assuredly can help, and it similarly can hurt.  There is nothing that demonstrates how little a person has done, or cares, about anything but himself than a voluminous but weak show of support.  Sure, some letters come back devoid of any useless bit of information, but then you don’t include those letters in your submission.

That said, Berman says that defense lawyers still have to walk a fine line between giving a judge a complete picture of a person and, well, overdoing it. “You don’t want a judge asking whether he really wants to hear from all these people,” says Berman. “Lawyers have to ask how much they want to push the envelope.”

That’s the lawyer’s job, knowing what serves to help the client as opposed to what hurts, or undermines, his position.  The problem is quality versus quantity.  Not only can the submission become excessive and burdensome, though one should expect that judge to simply ignore the excess as requiring way too much time to be worth the bother, but a handful of truly helpful, meaningful, informative letters will do far more than a couple of hundred letters about finding some Morgan Stanley guy a watch.

It’s really not that fine a line when done properly.  If it wouldn’t make a difference to you, leave it out.  If it makes your client look greedy and self-serving, toss it.  If it’s more than even the defendant’s mother would bother to read, then it’s too much.  Pre-sentence submissions are just as strategic as any other part of a case, and it’s hardly in a defendant’s best interest to throw everything against a wall and hope something tastes like chicken soup.