Laws will be coming.  You can bank on it.  The United States Department of Education has put school districts on notice that they are to craft anti-bullying policies or lose cashola, and they will, much like the zero-tolerance drug laws that give rise to strip searches of young girls over demon-acetaminophen.  Action begets over-reaction.  It’s how we roll.

Aside from the problem that the word “bullying” has yet to be adequately defined, which of course hasn’t stopped anyone from screaming for its criminalization, and that most advocates deem it a function of hurt feelings rather than particular conduct, its elevation to epidemic proportions is precisely the sort of hyperbole that gives rise to the next wave of insane laws and outrageously inappropriate knee-jerk outcomes. 

This isn’t to say that there is no such thing as bullying, or improper conduct that should be prevented. Indeed, schools have always had the problem of bullying to deal with, and the fact that anyone has to use hardened methods to get schools to give some serious thought to protecting students isn’t a commentary on bullying, but a commentary on schools.

That said, let’s not do the easiest thing and lump this into our latest and greatest problem, hurt feelings.  Much of what we see is a product of our fashionable societal expectation that we can get through life without anyone saying or doing anything that will make us feel sad.  We developed a belief that we are entitled to demand that others be the guardians of our fragile self-esteem.  If our self-esteem suffers, someone must be at fault. There must be someone to blame.

Are we seeking a world where people only speak sweetly to others?  When someone asks if they’re ugly, must you insist they’re beautiful no matter how ugly they are?  Must you do so upon pain of imprisonment?

As ridiculous as this sounds, it’s hardly far-fetched.  Within that amorphous scope of “bullying” are people who say mean things to others, or call them unpleasant names.  Some will speak to how such conduct makes the victim feel, and they are absolutely right that it’s not nice.  But is it criminal?  Do you really want it to be criminal?

When I was a kid, there were bullies.  I don’t believe I was a bully, but I similarly feel certain that I must have said something mean to someone at some point, and I would assume that I hurt someone’s feelings.  And still, they survived.  Mothers told their children the rule:

Sticks and stones can break your bones but words will never hurt you.

We believe our mothers.  Someone called us a doody-head, and we called them a doody-head right back.  There was no call for follow-up therapy or drugs for post-traumatic stress disorder.

This is not the solution to bullying.  It is, however, a lost concept for the myriad things that happen in an ordinary life to people whose feelings are hurt by the words of others.  If we got back to it, instead of “I’m OK, You’re OK,” and wallowing in our personal misery for every slight and hurt that life inflicts. perhaps we can avoid much of the “epidemic” and consequently much of the stupidity that will ensue from the cure of the disease.

We’re in for a rough trip ahead with this trend to stop anything and everything that might impair a person’s entitled state of positive self-esteem, and no doubt after the lives of more than a few young people are lost to the next zero-tolerance flavor of the month, we will correct the over-reaction.  In the meantime, just repeat the old phrase to your kids and remind them that they don’t have to fall into suicidal depression just because some idiot said something mean to them.  Not every harsh word in life is criminal.

Their feelings are their own responsibility.  They will be a lot happier with themselves if they can be a bit tougher with others.  And if even it makes them sad for the moment, it’s not like anybody broke their bones.

The phone call was eagerly awaited, hearing from my client whose time was served and return to his family complete.  He survived.  Even though some clients prefer to never speak with their lawyer again, as the personification of one of the worst experiences of their life, I almost always hear from mine when their term is over.  I want to know how they are, how they fared.  I want to learn from their experience.

The case was a financial crime, what others call “white collar,” a phrase I prefer not to use as it carries connotations that it’s somehow of a higher order, less nasty and brutish than street crime.  It skews the defendant’s perspective into thinking that his charge is somehow less felonious and the possible imprisonment more gentile.  It’s taken less seriously, and acquiescence to prosecution somehow more acceptable.  This is total crap, but the realization doesn’t hit home until it’s too late.

My client’s voice was animated, filled with stories to tell me about his experience inside.  But the stories carried one theme, that he never really understood all that I had told him until he heard the stories of others.

He told me about defendants who were never fully informed of what a guilty plea entailed.

He told me about defendants who paid two, three times as much as he did and ended up with half the work and twice the sentence.

He told me about defendants who had no money to pay and never had a chance.

He told me about defendants who were innocent, or at least not nearly as guilty as the government would have it, who never had a chance to tell their lawyer before the deal was cut.

He told me about defendants who thought this could never really happen to them, right up until the cell door slammed shut.

A fellow he befriended inside, also convicted of a financial crime, explained that he didn’t learn that his lawyer had reached an agreement with the government for him to plead guilty until he arrived at court.  Sure, they had talked about the possibility of a plea beforehand, in cursory terms and with an eye toward hopeful outcomes. 

The defendant was confident that he would end up fine.  After all, he had paid an extraordinary fee, and like any good businessman, expected to receive the best of results for his money.  His lawyer had the right pedigree, and held a respected position in a fine law firm, with vast resources and many little lawyers scurrying about in the background to do this bidding of his lawyer.  You don’t get to wait in mahogany paneled rooms if your lawyer isn’t great, right?

It didn’t turn out that the deal was quite as good as desired.  In fact, it didn’t turn out to meet his expectations at all.  The discussion happened on a bench in the hallway outside the courtroom.  He couldn’t hear very well because of the echo.  He had trouble processing the information, the lawyer words used to explain the details.  He tried to formulate questions, but couldn’t quite find the right words to ask because his head was spinning.  Then it was time to walk into the courtroom and do it.  His lawyer told him that this was what he had to do, so he did.  He had plenty of time later to think about it.

My client told his friend how he had spent many hours talking about the plea before making his decision.  There were numerous meetings of as many days, each time new questions and issues popping into his head and requiring not merely another answer, but time to digest the answer.  Answers were often vague, as in “it’s up to the judge,” and it was difficult to appreciate that there were often more variables than absolutes.  The options were discussed, and often discussed again.  And again.

Inside, my client finally got the answers he sought.  He had all the information one could possibly possess, with both the good, as well as the bad, clearly spelled out.  He realized that he was told certain truths that he couldn’t possibly appreciate at the time, but that he was told them anyway.  He realized for the first time that he wasn’t the only one in this situation, a realization that often escapes defendants charged with financial crimes who think they are the first and only person to be put through this torture by a harsh and personally vindictive government.

My client laughed on the phone, admitting that he thought I was nuts when I recommended that he take the plea.  He told me of other guys, like him, who couldn’t wrap their head around the idea that their conduct was worthy of a criminal prosecution, and refused anything short of an apology and ceremonial dismissal.  Not because they didn’t commit the crime, but because they just didn’t deem their conduct worthy of punishment.  These were the guys who were there when my client arrived and and still there when my client left.  They will still be there many years from now.

We talked about what his life would be like moving forward.  He had learned a great deal about injustice and reality, and wanted to do something about it to help those he left behind.  I offered him some ideas about things he could do, but cautioned him against making this too big a part of his life.  He’s got a family, and his family needs his attention more at the moment. 

He told me he was surprised that his friends and neighbors didn’t avoid him like the plague.  In fact, they welcomed him back and embraced him.  I explained that people, some of whom are his friends and neighbors, are far closer to understanding his situation than he could have ever imagined.  He asked me why I didn’t tell him that beforehand.  I told him that until he lived through the experience of prosecution and imprisonment, he never would have understood.

We’re going to sit down for lunch soon.  Not as attorney/client, but as two guys who both understand.  This time I’ll pay.

Gideon at A Public Defender, who is not only back in the saddle but riding at full gallop, raises a particularly troubling scenario about to play out at Moritz College of Law at Ohio State.  Dealing with the prosecution of “Hiccup Girl,” Jennifer Mee, a one-time internet phenom turned accomplice in a botched robbery that left Shannon Griffin, 22, dead.

Mee is charged with 1st degree murder under the felony murder rule, a common law holdover that provides that any participant in a felony, where a death results, is chargeable with murder. While the rule is of dubious merit, it remains the law and hence is taught to first year law students in their criminal law class.  

Doug Berman will be teaching criminal law this semester, and found it fortuitous that this case arose just in the nick of time.

I will use the “Hiccup Girl” case to highlight common arguments against broad felony murder provisions (e.g., that it treats too harshly a defendant with little or no bad mens rea concerning causing another’s death and may not be an effective was to deter underlying felonies).  But the case has me now wondering whether and how first-degree murder cases such as this one can and should get resolved via plea bargains. 

As a technical matter, the only form of homicide which the “Hiccup Girl” can be charged with is first-degree murder.  I do not think an honest prosecutor and/or judge could or should allow Jennifer Mee to plead to a lesser homicide charge.  I suppose a prosecutor and/or judge can (and likely will?) allow Mee to plead guilty only to robbery charges and simply not bring any homicide charges.  But would this be truly a just outcome?  Would such a plea deal, in essence, be a form prosecutorial nullification given that the Florida legislature apparently has decided that the Jennifer Mee’s of the world out [?] be facing first-degree murder for which the only available punishments are death and life without parole?

 

Gideon rips Doug’s view to shreds.

What? For someone who is considered an expert on criminal sentencing and who is also teaching future lawyers about criminal law, this is extremely poor statutory reading and reasoning. This assumes many things:

1. She was aware that they were going to kill Griffin all along and intentionally lured him to his death.

2. She has nothing to offer the prosecution.

3. They have no discretion in charging and or plea bargaining.

An amateur criminal defense attorney can probably take only the facts I’ve listed above and make a compelling case that she may in fact be guilty of second or third degree murder, which carries a much lesser sentence. Berman is free to express his opinion that she shouldn’t be given any leniency and prosecutors should stick with the first degree murder charge as a matter of “principle”, but to suggest that no “honest prosecutor and/or just could” allow her to plead to a lesser crime is just silly and belies such a fundamental misunderstanding of the criminal justice system that I am honestly rather shocked.

Beginning with the assumption that Doug recognizes that he’s not working with facts, but merely early reporting that may later prove to be wrong or irresponsible, not to mention entirely from the police perspective which tends to provide a view of the crime that entirely supports the prosecution, ignoring anything that undermines the effectiveness of the press statements, I will presume that Doug doesn’t mean to suggest that Mee is presumed guilty.  It may appear as if he’s reached a verdict, but I reject the idea that Doug wouldn’t adjust his view as new information becomes available.

That said, Gideon’s point, that even the rawest recruit in the trenches, working with the assumed information as provided by the police, can come up with a list of reasons why Doug’s statement is blindly dogmatic.  By phrasing it in terms of an “honest prosecutor and/or judge,” he suggests that only a cynical, dishonest system would produce a result different than what he thinks proper.

It’s not particularly significant that an individual holds this view.  The world is filled with people who hold uninformed or illogical views, based upon their limited knowledge and, where needed, expertise.  Some of them offer comments here.  But Doug Berman sits in a different position than most, being the William B. Saxbe Designated Professor of Law.  That’s quite an honor, as well as a responsibility.  When Doug tells a classroom filled with fresh-faced first year law students something, they listen.  They learn.  They carry his words with them throughout their legal career.

To say that no honest prosecutor can exercise discretion in a case where a pertinent fact may be strongly in dispute, where the legislature has provided for lesser alternatives, is not honest.

Mee could easily be guilty of any other degree of murder, thereby permitting the judge to impose a sentence less than life. We should encourage prosecutors to freely exercise the discretion when the facts warrant it. It may be too early to say that they do, but it’s also too early to say that they don’t.

One can never be sure whether one or all students will end up practicing criminal law, but there’s certainly a possibility that a future prosecutor is sitting in Doug Berman’s classroom.  Maybe even a future judge.  It could happen.  To paint the exercise of discretion in such ideological terms, as a matter of personal integrity, would not be the act of a teacher, but a demagogue. 

Just as I conveniently assume that Doug’s views take for granted that the information in hand may not prove to be accurate, I similarly assume that Doug’s commentary, and phraseology, was the product of quick fingers rather than deep thought.   When the time comes to teach his class about the felony murder rule, with its multitude of problematic assumptions that render it archaic and frequently bizarre and arbitrary in application, he will include the practical considerations that come with any prosecution, all as valid and as much a part of a system that intends to provide safety valves to avoid unduly harsh and irrational outcomes if prosecutors and judges are sufficiently well trained to avail themselves of them.

The one thing we certainly don’t want is a law school criminal law class that believes that the only honest prosecutor and/or judge is the harsh, inflexible, irrational one.  I refuse to believe that Doug Berman would ever be the teacher of such a class, and that the reflection missing from a dashed-off blog post will find its way into the classroom.

A sentence of 15 years to a 22 year old defendant is, in point of fact, a lifetime.  Had Andrew Guadioso found himself in a different courtroom, especially one with a headline seeking District Attorney like Nassau County, Long Island’s Kathleen Rice, he might have been staring at a murder charge, and 15 years would look like a sweet deal. 

Guadioso, you see, drove under the influence of drugs, causing the accident that killed Army Sgt. Thomas E. Towers Jr., a two-tour veteran of the war in Iraq.  From the Orlando Sentinel :

He could have been sentenced to 15 years in prison for the fatal wreck March 14, 2008. Investigators alleged he was traveling on County Road 452 north of Eustis at more than 80 mph in the rain with traces of street drugs in his blood when he veered left of center and smashed almost head-on into the soldier’s car.

For causing the accident . . . Andrew Gaudioso was ordered to send the Eustis soldier’s family a postcard every week for 15 years.

“He said he thinks of my son every day but, excuse me, I don’t really believe that,” said Towers’ father, Thomas E. Towers Sr. “At first I thought I wanted prison [for Gaudioso]. Then I thought it would be better to force him some way to remember — at least once a week — what he did. I think this does that.”

The unusual sentence, imposed this month by Circuit Judge G. Richard Singeltary, does not specify what Gaudioso should write on the postcard, which must be presented to his Lake County probation officer with the 28 cents postage paid. If he fails to send the weekly postcards, Gaudioso could be sent to prison for 15 years.

Creative sentences like Gaudioso’s are a growing trend in American courtrooms, said Jonathan Turley, a constitutional-law expert at George Washington University and a critic of the practice, which often uses shame as punishment.

Turley said so-called creative punishments threaten to reverse centuries of progress in U.S. courtrooms, where justice has evolved from pre-colonial practices of public pillories, scarlet letters and tar-and-feathering to a system of thoughtful, consistent sentences designed to punish offenders and protect the public.

“There is ample embarrassment in any criminal conviction. But there is a sharp difference between shame from a punishment and shame as the punishment,” Turley said. “These sentences have a corrosive effect on the legal system.”

And wondered: What would the killer write?

Every day, he dragged himself down the dusty path to get the mail. He flipped through fliers and bills, searching for that small slice of justice.

But three weeks had passed since the sentencing, and Towers still hadn’t received a postcard.

Writer’s block?  Finally, a card arrived/

Towers cradled the card in both hands, ran his thumbs across the slick conchs. “Andrew Gaudioso,” said block letters across the back. “Mr. and Mrs. Towers,” the shaky print said. “I’m very sorry.”

He read the words over and over. Closed his eyes. Then read them again.

“Is that it?” he finally asked, flinging down the card. “You’ve got to be kidding me. That’s all there is?”

He sank back into the sofa. Dina watched his shoulders slump, his head drop. “Wait, Dad,” she said, “Here’s another one.”

The second postcard was labeled “The Legend of the Sand Dollar.” Towers studied it, took in the symbolic cross, the hidden doves of peace. Then he turned it over.

The card was blank.

As much as I realize that blawg readers much prefer posts about salacious crimes, violent cops and twitter, sometimes you just have to suck it up and read a post about law.  So suck it up and read Nathan Burney’s review of the Foreign Corrupt Practices Act.  To corporations attempting to do business in a flat world, it’s one of the most poorly conceived and arbitrarily enforced laws around.  No matter how much you may hate corporations, it’s good to keep them financially viable so they can manufacture and sell the shiny stuff you like and hire and pay people so we aren’t reduced to a nation on welfare.

The putative idea behind FCPA is that it’s wrong for American corporations to go around bribing petty officials elsewhere to get or keep business.  Since bribe-givers have no interest group, there are few willing to stand up and disagree.  But as Nathan notes, it’s not quite that simple.

The Foreign Corrupt Practices Act, among other things, says it’s against the law for any U.S. citizen or business to pay a bribe to a foreign official.  The penalties can be staggering, with fines calculated as the amount of income the briber hoped to receive down the road as a result of paying the bribe.  “Any” U.S. citizen means just that: anybody, not just a corporate executive.  A “foreign official” means anyone with a government job — including people working in industries that are government-owned or government-controlled.

“Bribery” includes giving anything of value in the hopes of getting something in return.  It’s really a broad standard.  A bribe doesn’t have to be an explicit tit-for-tat, and it doesn’t have to be just for the purpose of landing a choice contract.  A bribe can be just a nice dinner at a fancy restaurant that might make get you looked on with more favor next time contracts are being awarded.  A bribe can be a “facilitation payment” to a petty bureaucrat, some grease to ensure that you are allowed to do what you are already entitled to do.

In other words, it covers pretty much anything and everything that goes on in the ordinary course of business, from buying dinner when  meeting with the local petty bureaucrat who was given a small Ferrari by your Chinese competition the week before, to sending flowers to paying the vig demanded by the regional Feudal Lord of telephones, with whom you already have a contract but who desires a new Ferrari to keep up with the petty bureaucrat.  Keeping up appearances costs money, you know.

The issue doesn’t only arise from the various disincentives created by the law and its arbitrary dynamics, but by at the hand of a coterie of former justice department lawyers who left the office, went legit, and are now making small fortunes advising and representing corporations in FCPA actions.

Nice work if you can get it–and to the tune of billions of dollars, lawyers, accountants and consultants, many with past ties to the Justice Department, are getting it. In the last few years, as the feds cranked up enforcement of the 33-year-old Foreign Corrupt Practices Act, a thriving and lucrative anti-bribery complex has emerged. Whether it’s having any impact on reducing bribery is another matter. Instead, companies can find themselves getting extorted in foreign lands, only to get extorted again by Washington. It works generally like this: A company that suspects bribery overseas hires a battery of lawyers, accountants and investigators who may then report any findings to Justice in hopes of some undefined leniency. More likely, the company pays out huge fines and then hires more lawyers as government-mandated compliance monitors, a job that can stretch into years of legal billing.

Notice that nothing in there suggests any attempt, even consideration, of defending against allegations?   The reaction of these DOJ-cum-defense lawyers is a simple formula:  Investigate (pay), Report (pay), Concede (pay), Negotiate (pay), Comply (pay), Monitor (Pay).  Notice any theme in there?

It’s not really as Machiavellian as it seems (Bruce Carton doesn’t think so), as not every lawyer schemes to suck up millions upon millions of dollars to no end other than confess to wrongoing, flop on your belly and beg for forgiveness and then pay it all over again (once, if not twice if one includes the fines to be levied) to make sure it never happened again.  Some fight.  Some mean well.  Some have passing thoughts of defending rather than laying spread eagle on the ground.  Some.  But not too many.

This has the effect of empowering the government to engage in baseless rectal exams by young turks of righteousness whose business experience and acumen is, at best, limited to a lemonade stand.  Had these big, wealthy, macho corporations put on their man pants and, if they were not engaged in bribery, duked it out, perhaps they wouldn’t be viewed as ATMs for the government.  But that would have required them to act against advice of counsel.  Very expensive counsel, I might add.

And if you don’t think the FCPA matters to you, who do you think it paying the many millions of dollars forked over to lawyers and government, not to mention the opportunity costs of doing business overseas where only American corporations are subject to a constraint that flies against local culture and custom. 

Nobody is suggesting that actual bribery is a good thing and should be tolerated.  It would be nice if this was pervasive attitude, but regardless, we can hold our corporations to a higher standard.  However, the FCPA has put everyday business practices, with no quid pro quo to even the most fertile of young government lawyer minds, at risk.  It’s going to be awfully hard for the United States to regain its position as an economic engine in the world with two hands and a foot tied behind its back.

But if you’re okay with taking an economic backseat to India, well, then there’s no reason to be concerned and certainly no point in your reading such a boring, law-related post.

Speedy trial is a guarantee, both to defendants as well as society.  It says so in the Constitution.  It says so in some state laws.  Under most circumstances, the failure to provide a speedy trial rests with the prosecution, whether for failure to get their act together or the loss of a necessary witness at a critical moment.  Courts do their best to avoid it, as it means a potential criminal walks.

In California, however, time ran out.  From the Los Angeles Times :

In a unanimous ruling, the California Supreme Court on Monday upheld the dismissal of 18 criminal cases, two of them felonies, in Riverside County because there were not enough judges to hear them.

“The lack of available courtrooms and judges was attributable to the Legislature’s failure to provide a number of judges and courtrooms sufficient to meet the rapidly growing population in Riverside County,” wrote [Chief Justice Ronald M.] George, who has been lobbying legislators for years for more judges.

The article was later updated to note the extended implications of the decision.

The ruling also was a victory for defendants in an additional 300 Riverside County criminal cases that had been dismissed for lack of judges and were on appeal, said County Deputy Public Defender Wiliam A. Meronek. 

On the one hand, if the government wants to put people away, it has to provide the resources necessary to fulfill the legal duties that are required of it.  Defendants can’t be held for extended periods of time, whether in jail or with the threat of conviction hanging over their heads, because the state wants to prosecute on the cheap. 

At the same time, this failure may well result in people who have committed crimes being allowed to walk away, taking the message that they are now free to commit another crime with impunity.  All they need do is hold out for trial.  Roll the dice and they not only have the chace to win before a jury, but win because they will never get to a jury.  There is a reason we have criminal laws, and that’s to prevent people from committing crimes, and then committing them again.

California’s failure to fulfill one of its basic missions, however, is exacerbated by the tough on crime attitude held so dear by some prosecutors.  As Meronek notes:

“The courts are just overwhelmed by both the exponential growth in population and by some extent to the district attorney’s charging policy,” Meronek said. “They tend to pursue everything, and they are reluctant to plea bargain or negotiate any settlement.”]

The mindless, simplistic approach toward criminal justice that’s been applauded and rewarded for decades is finally coming home.  Ironically, the idea that if the defense held firm, stopped begging for pleas or cooperation deals and let the system run its course, the courts would collapse under the weight of the never-ending stream of criminal laws and over-enforcement.  But this didn’t happen. 

Whether because defense lawyers advise their clients to take pleas because it was the right thing to do, or because it meant less work for their fee, can only be discerned on a case by case basis.  But the path they beat to the prosecutors’ door emboldened ever more draconian plea offers under harsher laws, until there was nothing left to give.  There’s no reason to plea to the charge and take a chance on sentence, or even give away more than the minimum, under almost any circumstance. 

So defendants demand a trial, as is their right, not because they are brave or tough, savvy or shifty, but because prosecutors left them no viable alternative.  They outsmarted themselves.  They out-toughed themselves.

The system has long been out of balance, ranging from the monies expended on indigent defense to the cost of incarceration versus education, to the laws that seek to micromanage every aspect of human existence by manufacturing crimes of every stripe based on fortuitous outcomes with no necessary nexus.  It’s not going back any time soon, as society has come to expect a new law every time a dead child turns up, as if we can eliminate tragedy by criminalizing breathing.

The California Supreme Court’s decision took a strong stand, holding that the absence of a sufficient number of judges and courtrooms is not a burden on the defendants’ shoulders, but a failure of the government to fulfill its duty.  It wouldn’t have been terribly difficult for the court to have gone the other way, calling it a mere administrative glitch and holding it unfair to burden the prosecution, or society, by freeing criminals to rape and pillage. 

Is building courtrooms and buying rayon robes more important than educating children and feeding the hungry?  Different people will answer this question differently, but the court sent a message to prosecutors that they must work within existing resources to prosecute those most worthy, and stop the hardball tactics that win elections and make them the darling of the tough on crime crowd. 

If only the next big state court ruling will hold that the failure to provide adequate representation to indigent defendants, by overburdening public defenders, we might well be on the road to returning a bit of balance to the system.  We’ll work on some of the other stuff, like testilying cops and junk science, next.  As a variation on the punchline to the old lawyer joke goes, 318 dismissals is a good start,

Bruce Carton very kindly offered to pay my entrance to the Global Happiness Summit.  I declined his thoughtful offer.

I am happy.  Very happy.  Anyone who needs to go to a conference to figure out how to be happy is pathetic.  That anyone would even consider holding such a conference is bizarre.  If you need a Global Happiness Summit to figure out how to be happy, then you should consider drugs or masturbation.  Maybe both.

Doug Berman points to a fascinating op-ed in the Roanoke Times, dealing with the rarely mentioned ugly little detail of probation officers in federal cases providing the sentencing judge with secret sentencing recommendations that appear nowhere in the pre-sentence investigation reports.

After federal defendants are convicted, probation officers prepare a report to help judges decide punishment. The pre-sentence report discusses the convict’s history, family, employment, ability to repay costs of the offense, and how the crime affected victims. The report includes a calculation of possible sentences under federal guidelines, based on scores for the offense and the defendant’s criminal history.

This part of the pre-sentence report, while sealed from public view, is shared with the prosecution and the defense and often is vigorously debated in front of a judge in open court.  Another part of the report rarely sees the light of day in most of the nation’s 94 judicial districts.  This is where the probation officer advises the judge what sentence to impose.  “By local rule or by order in a case, the court may direct the probation officer not to disclose to anyone other than the court the officer’s recommendation on the sentence,” says the Federal Rules of Criminal Procedure, which governs the operation of U.S. courts.

The underlying notion is that the probation officer, in the course of his investigation, has gained some deeper insight into the defendant to be sentenced, going beyond the routine criteria.   This allows the PO to tell the judge, sotto voce, about the “real person,” eliminating the static of the lawyers’ rhetoric and spin.

The problem, of course, is that the probation officer has no greater magical powers than anyone else to divine the deeper nature of another person, and few are quite as worthy to judge another as they think.  Yet they are not only expected to do so, but do so without the defendant (or his noisy lawyer) knowing about it, such that absurdly wrong information and conclusions become absolute in the judge’s mind and are immune from challenge.  No one but the PO and judge, and perhaps the prosecutor, knows what’s being whispered in the judge’s ear.

Most lawyers doing federal defense are well aware of this happening, and we recognize the importance of giving the probation officer as much to work with favorable to the defendant during the PSR process.  As wrong as I may believe it to be, there is no benefit in ignoring that the PO has the judge’s ear, and it would be insane to needlessly antagonize the probation officer.  We prepare for the PSR interview so that the defendant is cooperative, thorough, on point and honest.  We provide documentation that makes the PO’s life easier, and offer the information that will, hopefully, help the PO to see the defendant as a real, multi-dimensional, human being. 

It astounded, me therefore, to read this comment to Berman’s post by someone who purports to be a USPS:

There are, sadly, too many POs who harbor a prosecutorial bent. In some cases, they come to the job that way. Many of them, however, are created by the hostile and uncooperative attitude of some defense attorneys. A new presentence officer (at least in my district, a very large one), will experience that the Government is friendly and helpful, often even respectful, while the defense attorney is rude, evasive and even aggressive in thwarting the investigation. The initial reaction is that credibility is given to the Government. This will persist unless the PO either experiences an unethical prosecutor, or is somehow able to see past the unpleasant experience with defense counsel to the underlying validity of counsel’s arguments.

Now sometimes what defense counsel criticizes as a mischaracterization is really just a characterization. Without knowing more about the case that inspired this posting, it is tough to know if Mr. Cargill’s stated concerns are objectively valid or not. Other times, their has clearly been a failure to bring balance to the sentencing assessment. Chicken v. Egg. Are POs sometime prosecutorial because some defense attorneys are hostile, or are some defense attorneys hostile because some POs are prosecutorial?

That defense counsel is “rude, evasive and even aggressive in thwarting the investigation” seems unreal.  What possible benefit would a defense lawyer think can be gained by pissing off the person preparing the PSR and advising the judge?  It’s just plain nuts.

Yet the message is that those of us who do everything in our power to cooperate with the probation officer and help the PO to see the defendant as a human being are stymied, without our knowledge, by their prejudice against the defendant cause by other defense counsel. 

We thus have to add to the calculus that no matter how well we prepare, how cooperative we try to be, how much effort we put into humanizing the defendant and providing context to the offense, we start from a place of incredibility due to the offensive conduct of others that we know nothing about, and end in a place where the PO’s opinion is given to the judge in secret.  This is a problem.

Let’s face reality: we really have little clue who the PO is, what’s going on in their heads, their experiences, their prejudices.  We know more about jurors than about the “little birdie” whispering our client’s fate in the judge’s ear.  They may smile kindly, listen warmly, and burn the defendant six ways to Sunday in the recommendation to the judge.  We don’t know.  We should, but we don’t.

But the absolute last thing we need is having some other criminal defense lawyer think that a probation officer is some low-life court functionary who they can, and should, dump on.  The POs are critical players in this process.  They have a job to do, and they do it.  Their opinion is sought and matters. 

The idea that my client might suffer because some other criminal defense lawyer has soured a probation officer on defendants is unacceptable.  Don’t do it.  And if you think you’re such an important big-shot lawyer that you are entitled to piss off probation officers and treat them poorly, then you need to get out of Dodge.  Whether it’s right or wrong that POs offer their secret recommendations to the court, it’s absolutely wrong for some fool lawyer to screw it up for the rest of us.

Maybe I’m wrong  about the substantive nature of social media?

Maybe not.

H/T Peter Black at Freedom to Differ via Ed at Blawg Review

The phrase that comes to mind is that there is no second chance to make a first impression.  Yet defendants persist in trying to see if they can get away on the cheap before getting serious.  It’s not a new phenomenon, and it hasn’t changed over the course of my time in the trenches.  Lawyers are dead money.

A new animated video has appeared at the hand of D.A. Confidential, who I’m informed is a Travis County, Texas prosecutor.  The Travis County thing is apparently of some local significance, as in they dress funny in Travis County.  The video shows a criminal defense lawyer attempting to negotiate with a prosecutor, and getting nailed with his own lies at every turn.  Both oblivious and shameless at every turn, it’s pretty funny, far more so than the “want to go to law school” video that made the rounds lately.

Mark Bennett, who has an obvious affection for animation, posted the D.A. Confidential video with this introduction :

Why does it cost more to hire me as the second lawyer on your case? Because the first lawyer was probably this guy:

I laughed.  The video was funny.  The irony was funny.  The situation was true.  But it’s really not funny at all, because this video, though obviously exaggerated for comedic effect, is indeed what we walk into when we substitute on a case.  Our first job is janitor, cleaning up the mess the first lawyer left behind.

The assumption on the part of many defendants is that lawyers are fungible.  We all went to law school.  We all passed the bar exam.  We all go to court and do our court voodoo.  We must all basically be the same, with the variations being highly nuanced at best.  Or maybe it has to do with trials, and any lawyer can plead out a case as well as any other lawyer.  After all, doesn’t every defendant end up in the same place anyway, regardless of who defends him?

No.  Sadly, no, for no defendant should end up copping out to a term of imprisonment that’s longer than it should be for lack of caring or competent representation.  The touchstone for many lawyers is whether the defendant is satisfied with the plea.  If the defendant will take it, the job is done, the fee is earned.  Everybody goes home happy.

It wasn’t until I was on the NYSACDL listserv that I gained a fuller appreciation of what was happening with others.  There were the lawyers with whom I worked as co-counsel in multi-defendant cases, but even there it was obscured by the fact that someone invariably took the lead and others often rode their coattails, never actually doing much of anything to show their chops.

On the listserv, lawyers who were generally well regarded would ask questions, offer advice, crow about their successes or bemoan their failures.  It was a revelation.  Some revealed their cluelessness about the law.  Some showed that they were pathetically lazy.  Some were clueless, and often went on for a thousand words to prove it.  And some were incisive, knowledgeable and prepared to do anything it took to make sure their clients were well served.

In my pond, there are a lot of lawyers.  There’s no way to have a case with every one of them, and get to know them as lawyers in the trenches.  Many were friendly and funny hanging around the hallways or sitting in the front row waiting for the judge to take the bench.  They seemed like good people.  They seemed like good lawyers.  Who knew?

Trying to explain the problem to potential clients who seek representation after their first shot didn’t pan out as well as they hoped, I often use the analogy of the lawyer as gunslinger, a Paladin, who brandishes a six-shooter.  I explain that their choice of going cheap cost me a few of my bullets, and they are leaving me with only a few chances to do my work.  It’s an imperfect analogy in many ways, but it usually gets the point across. 

Once defense counsel goes off half-cocked to the prosecutor, the die is cast.  Indeed, to the extent there was any doubt of the defendant’s guilt before, the prosecutor is now certain that he’s got the right person because the defense lawyer’s act of desperation confirmed it.  But you’re not guilty?  Try undoing that certainty in the prosecutor’s head.

It can be done, sometimes.  The rush of the cheap lawyer to cobble together a quick plea is how he makes his living.  Do you wonder why the fee is so low?  It’s actually quite expensive, when you factor in that he only plans to make three appearances and a phone call before wishing you good luck.  It takes a lot more time and effort to do it right, and even more when you add into the mix that your first job is to clean up the mess your cheap lawyer left behind. 

It’s exasperating for all of us, and no, the fact that you wasted your money on the first lawyer doesn’t mean that you get a discount for the additional work.  You chose poorly. It’s not funny when you look back at it.