In preparation for sentence, a defendant charged with financial crimes (the erstwhile “white collar” criminal) will do everything possible to show the court four things.  First, that the crime was an aberration, and that he’s otherwise lived an exemplary life, committed to helping others and charitable causes.  The defendant is sincerely remorseful for his conduct, often borne of some psychological defect or trauma that diminishes his moral culpability.

Second, that people depend on him, both personally and professionally, and incarceration will cause significant harm to others who are innocent of any wrongdoing.  Usually, there will be letters from friends, family, employees, clergy, attesting to the positive impact the defendant has had on their lives, and the negative impact his imprisonment will have. 

Third, that there is no purpose to be served by imprisoning the defendant, there being no likelihood of recidivism, no threat to society, no need for rehabilitation.  Fourth, that the defendant has already suffered devastating consequences, from the loss of his savings, often home, career and reputation. 

Done well, the presentation at sentence can be a moving experience, particularly for the defendant and his family and friends.  It humanizes the person called “defendant” and the life summed up in counts in an indictment.  Yet, it doesn’t necessarily produce the empathy that defendants expect, much to a defendant’s anger and amazement, and to the heartbreak of his spouse and family.  The inevitable question is why?

Sam Fishman  was a lawyer with Latham & Watkins, who threw in a little for himself when billing for his firm.  As billing partner, he changed expenses, charged them off to clients, and pocketed the small change.  In the scheme of financial crimes, this one was embarrassingly petty, amounting to a loss of $350,000 over 13 years.  It ended one day, and he pleaded guilty to mail fraud.  At sentence, Fishman tried to show that he was, aside from his crime, a “distinguished, reputable, highly-esteemed model citizen.”  He sought a sentence of probation.  Instead, he was sentenced to 15 months.

After imposing sentence, Southern District of New York Judge Victor Marrero did something very unusual.  He explained himself.  His explanation, of why all the wonderful reasons offered by Fishman’s lawyers at Littman, Asche & Gioiella, failed to achieve their intended purpose.  It’s a remarkable explanation of the flip side of a life of virtue, marred only by a life of crime, and it’s incredibly instructive in understanding why, all the fine sentencing arguments aside, the court may not be inclined to be as sympathetic to the defendant as he might hope.

In seeking the Court s leniency, Fishman has made an impassioned case here and in his extensive written submissions that raise several significant issues. The professional thoroughness and diligence evident in counsel’s preparation, the strength of advocacy and the level of support expressed for Fishman by friends, family and business associates, call for a correspondingly detailed explanation of the Court’s ruling.

As a point of departure, the Court notes that Fishman’s presentation, though stressing points that argue for uniqueness, distinction and individual consideration, in fact is not uncommon. The Court has heard much of the argument in echoes from similar pleas for mercy frequently urged in this courthouse, indeed in courtrooms across the country. In particular, Fishman’s argument falls into a pattern advanced by a subset of the white collar criminal. This category encompasses a select class: distinguished, reputable, highly esteemed model citizens such as Fishman. The list of their achievements and virtues is long and impressive. At home they are good family men and women, caring spouses, loving parents, loyal and reliable to friends. At work, they are looked up to as outstanding professionals and business partners. To their community’s charities and public causes they are generous patrons and sponsors. And as worshipers they are devout, often rising as leaders of the congregation.

Yet, for all of their outward rectitude, these otherwise good people suffer a fatal flaw: they sometimes lead a double Iife.  Somewhere at the core, in a distorted dimension of the soul, the public image they present is as false as the lies they tell to sustain the appearances of an exemplary life. And somehow, for reasons that always defy reason, they fall into crime, doing wrongful deeds that seem aberrational, selfish and greedy acts that, when caught, they claim are entirely out of character with their otherwise law-abiding lives.

A copy of Judge Marrero’s sentencing memo  was sent to me yesterday, and I read it for the first time.  It’s worth a full read, for a excellent appreciation of how the court will look at your presentation, as well as something to offer defendant’s so that they can better understand why their life of virtue (aside from their crimes) doesn’t guarantee them a pass.  Judge Marrero’s reasoning is enormously instructive in explaining the applicability of the sentencing criteria and the nature of mitigation for the financial crime defefendant.

But more to the point, the client who views himself as a “distinguished, reputable, highly esteemed model citizen” often finds himself incapable of appreciating that when he stands before the court for sentencing, he’s a criminal defendant.  No matter what he’s done before, there remains a crime for which a sentence will be imposed.  Both the defendant and his counsel need to be prepared to face this challenge and reality.