This blog post is based on a sentencing over which I presided on Tuesday, November 28, 2017. It was a “Welcome Back, Kotter” sentencing in the sense that I had already sentenced the African-American offender in 2000 to a 60-month mandatory minimum in a crack case. He did not do well on supervised release, violating less than 3 weeks after starting his term. The next year, I revoked his TSR and sent him back to prison for 24 months.
On November 28, 2017, he was before me on possession with intent to distribute methamphetamine. He had 24 criminal history points and 29 unscored convictions, including an assault on a police officer (in 1994) resulting in the officer being injured and unable to work for 8 months. The officer testified live at the sentencing.
The U.S. Attorney’s Office could have filed two § 851 enhancements—requiring a mandatory life sentence. They filed neither. The AUSA filed a powerful sentencing memorandum focusing on the offender’s terrible criminal history, failure to pay over $100,000 in back child support, history of noncompliance, and extraordinarily high risk of recidivism. The AUSA asked for both an upward departure and upward variance. The quantity of drugs was small, so the offender’s guideline range was only 130-162 months with a maximum of life. Continue reading
Ed. Note: This is the second, and final, installment of Judge Bennett’s The Art of Opening Statements. The first installment can be found here.
RULE NUMBER FIVE: Lawyers tell stories like lawyers, not storytellers. The “thinking like a lawyer “training in law school harms lawyers in learning how to become spellbinding raconteurs. As Gerry Spence wrote*:
Lawyers are not trained as dramatists or storytellers, nor are they encouraged to become candid, caring and compassionate human beings. Most could not tell the story of Goldilocks and the Three Bears in a compelling way. We would be fast asleep by the time they got to the first bowl of porridge.
Another classic example of lawyers trying to spin a story is the lawyer version of the “Three Little Pigs,” A/K/A The Trio of Diminutive Piglets: Continue reading
In my 400 sum criminal and civil jury trials, I have heard a great many very good closing arguments. Not so much with opening statements. Even among very well-prepared and very good trial lawyers, their opening statements are often not as well crafted as the rest of the trial and do not show-case their considerable skills.
I offer the following observations focusing on criminal jury trials.
RULE NUMBER ONE: All great trial lawyers are great story tellers, but not all great storytelling lawyers are great trial lawyers. It takes more than just being a great story teller to be a great trial lawyer but I am convinced you can’t be a great trial lawyer without being a great story teller.
RULE NUMBER TWO: The most common yet worst way to give an opening statement. Several AUSA’s and many defense lawyers fall into this mode: They simply summarize what each witness will tell the jury. “And next, Mr.Jones will tell you he bought meth on one occasion from Mr. Smith, who claimed his source was the defendant, but that Mr. Jones did not know the defendant.” And then does the same thing with the 18 other witnesses not in any chronological, thoughtful, or helpful order. Just a bunch of mish-mash facts, but no story. Continue reading
This is a subject I have talked to many of my colleagues about to see if my experiences and views are idiosyncratic. They are not. The number one problem with motions in limine in both criminal and civil cases is the same, and after twenty-three years on the bench, I still find it surprising and shocking, but easily fixed.
Rule Number One: Attach the evidence you want excluded to the motion. Simple, yes, but judges could retire early if they had one dollar for every time a motion in limine was filed without attaching the matter the lawyer wanted excluded.
Here are some common examples:
- The defense moves to exclude the photographs of the crime scene based on Fed. R. Evid. 403.
- The defense moves to exclude the prior criminal record of the defendant, if she testifies, because the convictions are not admissible under Fed. R. Evid. 609.
After some 400 jury trials, I have seen many attempts to impeach witness testimony – sometimes successful, sometimes not. There are many techniques one can use to impeach a witness with an inconsistent prior response. Trial lawyers tend to have their own techniques.
Here is a summary of what I think are best and worst practices:
- When impeaching, be nice, but firm, to the witness. Translation: Jurors do not like assh**e lawyers. You generally get more with honey than vinegar.
- There is one exception to the above rule. If the jurors think the witness is despicable, disgusting, or a pathological liar, increase the aggressiveness of the cross. The witness has essentially given you “permission” to be tougher and rougher with them.
- Do not attempt impeachment if the difference is insignificant or laughable.
It is the exceedingly rare sentencing where I do not receive and read letters of support. I roughly estimate that I have read between 30,000 and 40,000 letters over the past twenty-three years. In one case alone, I read 107 letters.
For some very odd and unknown reason in our district, the Northern District of Iowa, these letters have always been referred to by everyone but me as “unsolicited letters.” That always makes me chuckle, because I, and my colleagues nation-wide, do receive unsolicited letters, but they start very differently than the letters on behalf of offenders. My favorite was years ago and received just before Christmas. Here is how it started:
Dear Judge Bennett,
I hope you nigger loving anti-American communist Jew lover have a nice Christmas.
It went downhill from there.* Continue reading
After twenty-three years of motions, hearings, trials and sentencings in over 4,000 criminal cases spanning four districts, I want to share my thoughts on the art of arguing the frivolous.
I practiced federal criminal defense law for seventeen years before I became a federal judge. For whatever reasons, in both retained and CJA cases, I had excellent client relations and to my knowledge never once argued a frivolous motion a client suggested. I listened and was patient with clients, but was able to convince clients why arguing frivolous positions was not in their best interest.
On occasion, I explained to clients, and confirmed in written detail for them, why I would not argue their frivolous claims. On very rare occasions I indicated that I would withdraw before I would argue the frivolous position. I explained why arguing a frivolous position harmed my credibility with the judge, probation office and the AUSA, and worse for them, harmed their chances of getting the best result possible. I do not recall ever having to withdraw.
So it is against this experiential backdrop that, to be blunt, I have been stunned by how often criminal defense lawyers argue frivolous positions. And I have a generous view of what frivolous means. It has to be totally devoid of a factual or/and legal basis, and be illogical, bordering on the ludicrous, before I am willing to label it frivolous. Continue reading