The WSJ Law Blog posts that Judge Richard Sullivan ignored the expectations of both government and defense at the plea of Madoff co-conspirator Frank DiPascali.
Specifically, the 45-year-old Sullivan (William & Mary, Yale Law), who became a judge two years ago after spending more than 10 years as a prosecutor at the U.S. attorney’s office in Manhattan, denied bail to Frank DiPascali, a possible key witness in future Bernard Madoff-related prosecutions. That occurred after DiPascali pleaded guilty to helping carry out Madoff’s fraud scheme, including lying to investors, creating lots of fake documents, and repeatedly lying under oath to SEC investigators. He is facing 125 years in prison.Let that be a lesson to would-be rats. It doesn’t always cut the way you think, and sometimes, just sometimes, the judge won’t rubber stamp the deal. Mike at Crime & Federalism praises Sullivan for his independence, and he’s got a good point. The job of judge isn’t to play handmaiden to the government, and the judge is supposed to make up his own mind as to what the proper disposition should be.
But this comes at me from a somewhat different direction than Mike. As one gets older, one sees kids grow up, and some eventually put on robes. I remember Richard Sullivan as a snot-nosed AUSA, having had a case with him early in his prosecutorial career. I’ve never been before him since he took the bench, but he was seriously anti-defendant then, and I can’t imagine that power has mellowed him any. He was the kind of prosecutor who would demand extra time for a defendant because he figured he would commit a crime in the future, and he might as well get him sentence for it ahead of time. Why get behind the curve?
Not all former prosecutors that I knew before they became judges turned out this way. John Gleeson didn’t. Louis Freeh, somewhat. But Richard Sullivan was too tough as a prosecutor, and obviously hasn’t changed his ways. I’m all for an independent judiciary, but I’m also for judges who don’t view themselves as avenging angels. I don’t know that Richard Sullivan can ever be talked off the ledge, and I’m not for judges who think that there’s no such thing as too harsh.
But the good thing about Sullivan, and particularly his decision with regard to putting DiPascali in on the plea when everyone expected him to walk out, is that it shakes up the rules for rats that too many rely upon when talking their way out of culpability at the expense of their brothers.
A large contingent of the defense bar has come to anticipate that they can skate around their responsibilities as defenders and fulfill their criminal clients’ wildest dreams by becoming adjuncts to the prosecution. The clients say whatever they have to in order to save their skin; some of it may be true, but it’s often filled with the false details, the negative innuendo , that matches the prosecution’s desires to clean up a dirty case. Let them have sleepness nights wondering whether they will have to face Judge Sullivan, who couldn’t give a rats ass what they sold to cut their deal. And let their lawyers look like fools and liars when they slap on the cuffs. This was never my idea of how to practice law, and I’ve never found a way to rationalize ignoring my duty to my clients to cut the quick and easy deal.
I guess there is a need for judges like Richard Sullivan. I just hope that I’m never before him. With my luck, he’ll be the judge in my next case. And he’ll pay me back for my first one.
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
I don’t know about this one. I’m not sure it’s always so easy on the lawyer to assist the client in cooperating with the government, and a lot of good can come from it, not only for the client but for others who might be to one degree or another innocent, but would be prosecuted except for the accurate information the client can provide to the government. And as the attorney for a cooperating defendant I would think it’s an important part of the role to make sure, as best you can, that the information your client provides IS accurate, and not just telling the prosecutor what fits in with his theory.
If your client has information that helps the government prosecute the right people and avoid convicting the wrong people, including your client, how is it not a good idea to go with that? And if it helps the prosecutor avoid tunnel vision, isn’t that something everyone has an interest in, especially fellow lawyers? At a trial, defense counsel and the prosecutor are adversaries, pure and simple. Outside that context there is room to be a colleague, and we shouldn’t despise that for fear of not being hard nosed and partisan enough.
Of course you can always tell the client that he can roll the dice and take his chances. He might tell you the truth and tell the jury the truth and you might do a brilliant job at trial yet they won’t believe him and convict him anyway. In fact that’s the likely outcome.
And at that point, having told the government early on to take their deal and shove it, who looks like a liar and a fool?
This is not an easy business.
Oh yes, the government loves cooperators who tell them that their targets are in fact innocent. They often throw parties to celebrate these CIs, and sometimes name streets after them. Happens all the time.
Thanks for the realpolitik of the decision. Like you, my heart won’t break if somehow rats can’t count on judges (for whatever reason) to go along with sweetheart plea deals.