It’s a dog eat dog world in the trenches.  For lawyers who spend their days toiling in a climate controlled office, sipping coffee to keep them awake, explaining at leisure the law to people who pay to hear their exotic-sounding words without fear of challenge, it is easy to maintain a calm, soothing tone, a steady gaze and even temper.  Try it when you have a split second to say a word that spells life or death to another human being, and puts everything at risk.  Not so easy.

Defending in the trenches involves choices.  Some are hard, while others are easy.  The easy path leads to a happy judge, little (or no) pressure on counsel and smooth proceedings.  But this often means that you’ve hung your client out to dry.  John Kindley recognized the dilemma in a comment here, and pointed to a case in Indiana where a lawyer, Michael Wilkins, was banned from the courtroom for 30 days for including in his brief this footnote:

The opinion is so factually and legally inaccurate that one is left to wonder whether the Court of Appeals was determined to find for ‘the defendant ” and then said whatever was necessary to reach that conclusion.

This footnote, according to the court, was improper because it undermined ”the public’s confidence in the administration of justice.”  Without knowing the decision under attack, I can’t say whether Wilkins’ assessment was accurate, but I can certainly empathize and understand why he felt compelled to state his position.  There are times that lawyers must make hard choices, even those that are likely to raise the ire of a judge and put the lawyer at risk.

Last week, I stood before a federal court for the sentencing of my client.  He pleaded guilty pursuant to an agreement, that left open our right to challenge the guidelines application by providing a ceiling but no floor.  While he had committed the crime (naturally a conspiracy), there remained huge disagreement about the million collateral details surrounding a crime that occurred over a 10 year period.  Two business partners comprised the conspiracy, and each pointed at the other as the moving force.  One sided with the government and I represented the other, if you get my drift.

We were faced with two choices in preparation for sentence.  We could take the easy path, acquiescing in the government’s view of how things happened over this lengthy period of time, with its cooperator minimizing his role and shifting culpability toward my client, or we could mount a serious challenge to the government’s position at sentence.  While this may seem like a no-brainer to the uninitiated, this presented a monumental risk to the defendant. 

By disputing the government’s “facts”, the defendant stood to be seen as deceiving the court, obstructing justice and failing to accept responsibility.  Judges like sentences that go smoothly, and hate having to deal with a serious challenge to the underlying facts at sentence. But my client, and every witness who would speak to me, asserted that the business partner was a liar and that my client was being falsely tarred for things he never did.  It’s not that he wasn’t guilty, but within the sphere of guilty there are many aspects that distinguish a malevolent intent and hand from a laboring oar. 

If we attacked the government’s vision of how the crime occurred, and the relative roles of the players, we invited the ire of the court.  We would either persuade the judge that my client was the least culpable person involved, or face the potential of an enhanced sentence for having the audacity not to take the punishment quietly.  We chose to fight.  If we sat quietly, the sentence would be that spelled out in the sentencing guidelines.  If we prevailed, the sentence would be lower, possibly even probation.  If we didn’t, the sentence could be enhanced and the defendant could face even greater time than anticipated by the agreement.  Everything was on the line.

My argument directly and forcefully disputed the allegations that my client was the mastermind of the scheme.  I called the government’s cooperator a liar, though in slightly less inflammatory language, but with equal clarity.  I left no doubt where we stood.  If the defendant was going to crash and burn, it would not be without a fight for the truth, even if it meant putting my own butt on the line for taking such an aggressive stance.  My client would not sit quietly and be sentenced to prison for someone else’s conduct.

The court first inquired whether the government sought a Fatico hearing.  It did not.  Did the defense?  This was a curious question, since the burden is on the government to prove the facts upon which it relies at sentence when disputed by the defense.  Despite my client’s secret hope that he would have the chance to stare his former partner in the eyes, I demurred.  No good could come from a Fatico hearing, which would ultimately prove a swearing contest, and plenty bad can happen.  While I was ready for it if the government was, which was an eminent possibility, the ball was theirs to hit, not mine.

After submissions and argument, the judge started by explaining her reasoning for the record.  Argument by argument, the judge sided with government.  Knowing the arguments favoring one set of facts over another in excruciating detail, each sentence was like a blow to the chest.  But this was the warm up, with the main event still to come.

Finally, after finding ourselves on the south end of horse headed north, the judge reached the crucial point where someone must pay for having the audacity to suck all the ease and pleasantness out of this sentencing.

But I attribute the defendant’s position to vigorous advocacy rather than any improper intention.

At first blush, one might think this an assault on my efforts to defend my client, where the judge imposed the blame for having fought the “truth” as she found it on me.  But this is where an understanding of the implications of such critical conclusions is necessary.  What the judge did was find for the government, thus removing the onus on it for having backed the wrong horse, but relieve the defendant of any taint for having chosen to fight rather than run scared.  By chalking up the fight to “vigorous advocacy,” my client would have no bill to pay for having refused to lie down and take it like a lamb at slaughter.

The judge imposed a non-guidelines sentence that was one-third less than the minimum sentence called for in the plea agreement, concluding it sufficient to satisfy 18 U.S.C. 3553.  All rhetoric aside, the judge understood.  She just couldn’t say so.

Of course, as any trench lawyer knows, this isn’t the end of the story.  Walking out of the courtroom, some family members immediately began spewing venom at the outrageous miscarriage of justice that just took place in front of their very noses.  One family member, who happened to be an attorney, fed the fire by muttering that he wished he had been the lawyer.  He would have tried the case and beaten it.  It was a disgrace, he said. 

The problem was that the extensive submissions and forceful arguments morphed into a belief that the defendant would not merely do better than the guidelines sentence in the plea agreement, all he was entitled to hope for under the circumstances, and the possibility that he was achieve the greatest possible victory, a sentence of probation.  That the sentence imposed was one third less than his guidelines would suggest was seen as a loss, a failure. 

At the courthouse door, the defendant’s wife said to me, “we appreciate everything you did, and we know you tried your best. It’s just so unfair.”