In anticipation of Melvyn Weiss’ sentencing, more than 275 letters were solicited attesting to his good character.  Some of the letters were written by luminaries of the bench, bar and financial world.  Some were written by regular people whose lives were enriched by Mel Weiss.  Some letters were moving.  Some said nothing and just provided bulk.

As I’m a big fan of pre-sentence memoranda, together with letters from friends, family, colleagues and acquaintances, and strongly advocate lawyers preparing them for their clients (meaning [a] doing them, and [b] doing them yourselves, not hiring some outside biz to do a useless cookie-cutter memo), I’ve seen some truly fascinating letters come back to me for submission to the judge.

As noted in the Weiss post, where a few of the letters were construed as “damning with faint praise” when the raised such significant acts of charity as helping a Merrill Lynch general counsel find a new watch or buying new boots for the wife of an art dealer, vetting letters for content is a critical aspect in the construction of a sentencing package. 

Some might complain that by doing so, the lawyer undermines the integrity of the letters offered in support of the defendant.  This is utter nonsense.  As we solicit support, we similarly oversee that it fulfills the purpose for which it was sought.  The purpose is to humanize the defendant, to show the judge a side of a human being that doesn’t appear in the indictment or trial testimony.  While prosecution witnesses will say many mean things about our client, no one will expect them to testify on direct about his charitable works.  It’s our job to bring this forth, and not to dirty the waters in some misguided sense of fairness.

More importantly, the people from whom we seek letters of support are unlikely to be very proficient in preparing such a letter.  It’s not like they (hopefully) do it all the time. 

My practice is to provide the defendant or his family with a one page “cheat sheet” that explains both the mechanics of preparing a letter as well as directions as to what content will be helpful.  As to the former, I explain that the letters are addressed to the judge, but returned to me.  Every letter much be signed and state the name and address of the writer.  Letters should be typed, or at minimum very legible.  Letters from friends and acquaintances should be no more than 2 pages.  Close family letters can be longer.  Letter should be written in English, or a translation must be provided as well. 

These “rules” all seem obvious.  You would not believe how many people would do otherwise if they were not given the “rules”.  Indeed, anticipate plenty of telephone calls and letters that fail to meet these basic criteria, usually with fascinating explanations of why it’s just not possible to comply. 

But mechanics aside, content is king.  And this is where you really have some fun.  A few important points must be noted up front.  Defendants invariably think that letters from “important” people who don’t have a clue who they are will be persuasive to the judge.  Important people carry more weight, right?  Except when they have nothing to say. 

Second, defendants love letters from their clergy, as if their pastor would write a bad letter for a parishioner.  There’s nothing wrong with a letter from the family’s religious guide, but judges know that many defendants are very religious in their spare time when they aren’t murdering people.  They don’t tend to sway a judge very far.

Third, defendants tend to be very concerned with quantity over quality, and will ask people on the street corner to write a letter for fear that they can’t find enough people who have anything nice to say about them.  This can cause some interesting problems, as it becomes clear that the defendant has no supporters or has done nothing commendable in his life.  Rarely will someone on the street corner have anything worthwhile to add.

The content of the letters would seem fairly straightforward.  First, explain the relationship between the writer and the defendant, including how long and in what capacity they know each other.  Second, provide a story about the defendant that exemplifies the reason for your support.  Use specific information rather than generalities, and telling writers to include an anecdote helps greatly to focus them on providing details.

The conclusion should ask the court to consider the information provided in formulating a sentence.  It can ask for mercy.  It can explain the negative consequences of punishment on others.  What it should not do is assert that the defendant is innocent and the cops lied through their teeth.  If the sentence is post-verdict, and the defendant maintains his innocence, the letter shouldn’t concede guilt, but it shouldn’t argue innocence either. 

Bear in mind that judges have limited time to read rambling, pointless letters, and after a few, will put their time to better use (like checking the guidelines grid again).  Structure your letters so that the closest family is up front, and the letter that are worthwhile but lack punch are buried in the middle.  Close with a strong letter, as some will read the first few and the last one to get a feel for the submission.  The middle is often just there for weight.

Despite this basic approach, there is one thing that must remain on the attorney’s radar.  People don’t write very well.  They mean well, but just can’t express themselves.  Also, some people who the defendant thinks are his friends may be, well, less than admiring.

Consider a letter I received from a “friend” in a case in the Southern District of New York:

Dear Judge:

I can’t believe this lying rat-bastard has managed to avoid prison this long. 

Sincerely,

This letter didn’t make the cut.  But still, even the letters from friends express some interesting concepts.  Consider this one, received from a friend just the other day:

Dear Judge:

Ms. S**** deserves serious consideration as a potential Human being, and I recommend her highly.

Sincerely,

For some people, this is the best they’re going to get.