I've got a new post up at Fault Lines about the latest case of "oops I didn't get convicted of what the FBI was investigating but I got convicted of lying to them about it."
For some time, Hillary Clinton's critics have been citing her defense of a 1975 rape case to attack her, and her defenders have been absolving her of any blame. Kathy Shelton — the victim1 in the case — has openly condemned Clinton and asserted that Clinton gratuitously attacked her, and others have criticized Clinton's description of the case from a recorded interview in the 1980s. The criticisms are (mostly) wrong and the defenses are (mostly) right.
A judge appointed Clinton to defend Tom Taylor, a man charged with rape of a minor in Arkansas. Many Clinton defenders emphasize that she was appointed by a judge and was not hired by Taylor and did not volunteer to defend him. It is regrettable that Clinton's defenders emphasize this, because it doesn't matter. Clinton's response ought not be "I was appointed and I didn't want the case"; it ought to be "you're goddamned right I defended my client." We're either committed to the Sixth Amendment's right to counsel or we're not. Criminal defendants, whatever they've been accused of doing, are individuals targeted by the vast, implacable machinery of the state. They are entitled to a vigorous defense. The purpose of that defense is to challenge the government and its evidence and act as a bulwark against the defendant being convicted simply because they've been accused. The right is not conditioned on whether or not we think they "actually did it" and not dependent on them being sympathetic or decent or deserving. Rather, the right is rooted in liberty (the recognition that the relationship between the accusing state and accused individual is inherently unbalanced and the individual requires an advocate to have any chance at all of fair treatment), skepticism and humility (the recognition that the state — and the mob — can easily be wrong, and that popular sentiment is a poor measure of whether someone is factually innocent), and a sort of grace. If you think that it's marginally acceptable to defend such people as long as you're not doing so voluntarily, you don't really support the Sixth Amendment right to counsel. You'd have lots of company on the Right and the Left, but you would not be supporting the United States Constitution.
(Incidentally, at the time Clinton was 27 years old and had quite limited criminal defense experience. She had taught criminal law and procedure, which is absolutely not the same as practicing it. She had never tried a criminal case. Yet she was appointed to represent a man on a very grave charge of child rape. That's the reality of indigent defense in America.)
Once appointed to the case, Clinton had a professional and ethical obligation to represent her client vigorously. That obligation made it appropriate — in fact, mandatory — to challenge the government's failure to preserve evidence (a portion of the victim's underwear) so that the defense could test it. That challenge probably induced the government to offer the defendant a plea to the lesser charge of unlawfully fondling a child under 14. It is not a "technicality" to hold the government to its obligation to preserve evidence so that the defense may test it. That is particularly true given the government's long-time fondness for junk science and rampant carelessness and even falsification of tests. Again, if you think it's wrong to challenge the government's failure to preserve evidence, you don't really support the right to a defense.
Clinton critics have also pointed out that she filed an affidavit in support of a motion seeking a psychiatric test of the victim in which she asserted that unnamed persons told her the victim was "emotionally unstable," displayed "stubbornness," and had made false accusations before. We don't know whether those allegations are true (the victim denies them) and we don't know whether Clinton told the truth that someone told her those things. If she didn't tell the truth, or if she put them in an affidavit in a way that concealed that she had no basis to believe that her source had a reason to believe they were true, then that was unethical and contemptible. The content and tone of the attack on the victim's credibility was characteristic of rape defenses in the 1970s (it survives to a much lesser extent today), which you may or may not find grotesque. However, it's a defense attorney's job to probe the credibility of government witnesses, and that includes seeking discovery to which the defense is entitled, including psychiatric examinations. It's not clear to me whether Arkansas law in 1975 required a defendant to support a factual basis for requiring a psychiatric exam — if it was, then in my opinion Clinton's claims premised on vague anonymous hearsay did not supply a factual basis. I suspect that most jurisdictions would now require a substantially more specific and attributed basis to subject an accuser to a psychiatric test, to the extent they allow the defense to demand such a test at all. You can make a perfectly colorable argument that a defendant ought not be able to force a psychiatric exam of an accuser. However, you can't make a plausible argument that a defense lawyer shouldn't ethically seek such an exam when the law permits it. Unless she lied — and I have no way of knowing whether she did — this step was part of Clinton's vigorous defense.
Tom Taylor pleaded guilty to fondling a child under 14. That is evidence that he did it — and may have done more — but is not, in reality, absolute proof. Defendants confess falsely, and defendants plead guilty to things they did not do to avoid the risk of a long sentence. The fact that a defendant was found guilty — or admitted guilt — does not make a vigorous criminal defense retroactively blameworthy. You're with me on that, or you're not — you agree that someone accused by the state should be defended, or you don't.
That leaves us with the recorded interview with Clinton from the 1980s. In my opinion, that interview displayed an ethical lapse, one regrettably common among lawyers presented with an opportunity to promote themselves to interviewers. Clinton said this:
Of course he claimed he didn’t [commit the offense]. All this stuff. He took a lie detector test. I had him take a polygraph, which he passed, which forever destroyed my faith in polygraphs. [laughs]
That's completely inappropriate. Clinton just suggested that she believed her client did what he was accused of, and a fair inference is that her belief may be premised in part on her confidential communications with him. That's a violation of her ethical obligations of loyalty and confidentiality, and it's not goddamn funny. It's completely inappropriate. It's easing her ethical duty to the former client in order to get a laugh line in an interview. The fact that it's common for attorneys to put their egos ahead of their obligations to the client doesn't make it right.
People also attack Clinton for laughing about the case during the interview. They find the tone of her description of her defense to be callous and disrespectful to the victim. This is a matter of opinion. It's true that defense lawyers, in relating war stories, may do so in a tone that seems indifferent to the suffering of victims. I think that's human nature. I've heard it from prosecutors and ER doctors and and surgeons and funeral directors and soldiers and other people tasked with handling grim matters. I believe it's more a defense mechanism than a sign of true callousness to humanity. You'd go quite mad if you constantly talked about such jobs with the tone they deserve. I can understand, though, that if a lawyer discusses an ugly case with an interviewer (as opposed to telling war stories with colleagues), reasonable people may find a light tone unsettling. I find Clinton's tone to be callous in the interview, but I recognize that's probably strongly colored by the fact I really don't like her.
I'm a criminal defense lawyer. I've represented people by appointment and voluntarily, and I've represented people accused of all sorts of things. I've made vigorous use of my client's constitutional and procedural rights to attack the government's case, even in cases were most observers believed it was clear that my clients "did it." That's my job. You're free not to like it, and free to attack me for it. But I'm going to call you totalitarian and un-American if you do.
By day, Bob Blaskiewicz is a college professor. By night, he's a skeptical blogger, using the critical thinking skills he teaches to interrogate public quackery. He's a long-term critic of Stanislaw Burzynski, a Houston researcher famous and infamous for experimental cancer "treatments." He helps run a blog critical of Burzynski's claims. (Long-time readers of Popehat might remember that a supporter of Burzynski named Marc Stephens attempted, to the best of his modest ability, to threaten me at length with criminal investigations and legal proceedings, which generated what for better or worse became the blog's catchphrase.)
Blaskiewicz is fighting the good fight for science and skepticism over woo and those who prey upon the desperate. That has consequences. In his case, it generated a bogus and malicious report to the FBI about him. Bob describes what it was like in a post (not to mention what it was like to have to put up with me). The result was obvious and (after the fact) appropriate — the FBI determined that the "threat" was obviously not one, but speech protected by the First Amendment. It's still regrettable that bad faith retaliatory reports to law enforcement can upend people's lives. It was a privilege to help out Bob, who has a lot of insight into the client experience:
[I was learning that a big part of a defense attorney’s job is keeping their clients from hurting themselves by acting out of panic.]
Read his post, it's worth it.
Last night Donald Trump said this:
On my first day in office, I am going to ask Congress to pass "Kate's Law" — named for Kate Steinle — to ensure that criminal aliens convicted of illegal entry face strong mandatory minimum sentences.
This is stupid political theater; let me tell you why. I'll begin by emphasizing that it's not, by any stretch of the imagination, a stupidity that's unique to Trump. He's just the most recent example.
I'll leave aside, for the moment, that naming laws after crime victims generally leads to bad lawmaking. Let's instead focus on the fatuity that slapping a mandatory minimum sentence on a particular crime will do anything other than signal our moral outrage about it.
Reentering2 the United States after you've been deported3 is a federal crime. The maximum sentence depends on whether you've committed crimes before deportation, and can be up to 20 years if you've been convicted of an "aggravated felony."4. The United States Sentencing Guidelines — which are used to generate a recommended sentence for the sentencing judge — calculate the sentence based on factors including the number and nature of past convictions and commonly yield ranges anywhere from a year to six years. I prosecuted these cases when I was an Assistant United States Attorney and defended them when I worked on the indigent defense panel. It's also a crime to enter the United States as an illegal alien in the first place, though that used to be prosecuted rarely. After their sentences, these defendants are transferred into immigration custody and deported.
Trump's rhetoric suggests that we can reduce crime and protect citizens by lengthening the sentences of aliens who return after deportation. This is bunk.
First of all, only a small number of aliens who return after deportation are prosecuted. That's because of resource limitations, not lack of political will or indulgence. There are far fewer federal prosecutors than state prosecutors, and far fewer federal judges than state judges. As a consequence there are a limited number of federal prosecutions. For instance, in Fiscal 2010 there were just under 70,000 federal criminal cases filed nationwide. That's for all types of federal crimes. Immigration prosecutions already take the lion's share of those. That Fiscal 2010 year, almost 30,000 of those cases were immigration-related. Many of those were illegally returning aliens, but others including alien smuggling, immigration fraud, and related issues. Compare that to 115 civil rights prosecutions, 581 official corruption prosecutions, 300 organized crime prosecutions, and 6,437 white collar crime prosecutions for fiscal 2010.
Second, immigration prosecutions have already been skyrocketing, not declining. Federal prosecutions for illegal reentry – and now for even illegal initial entry — have surged dramatically during the Obama administration. That means they take up an even greater percentage of federal prosecutions and federal prosecutorial and judicial resources.
Third, this surge in prosecutions is made possible by plea-bargaining offering shorter sentences. Illegal reentry cases are some of the simplest federal cases to prosecute: you've just got to establish the defendant's alien status, prior deportations, being found in the United States after deportation, and (these days) prior criminal record.5 For the most part prosecutors prove those things up with agents and documents from the agency now called Immigration and Customs Enforcement ("ICE"). However, there are a limited number of ICE case agents to put cases together for prosecutors, a limited of number of ICE records custodians to testify, a limited number of federal prosecutors, and a very limited number of federal judges. So jurisdictions with a high rate of illegal entries and reentries have created fast-track programs that reward very quick pleas (within a few weeks of arrest, before indictment) with reduced sentences. Those fast-track programs drive a gigantic percentage of the federal criminal docket in places like San Diego.
Even with fast-track programs in place, and even with immigration crimes taking up a very large percentage of federal criminal efforts, only a small percentage of illegally returning deportees are prosecuted criminally. A tiny percentage of first-time illegal entries face prosecution. There are no resources to do more. U.S. Attorney Offices generally create internal guidelines to determine which cases they'll prosecute. For instance, when I was a federal prosecutor in the 1990s, the Los Angeles office only prosecuted cases involving aliens with prior aggravated felonies or lots of prior deportations. Those days, the office — one of the biggest in the country — indicted about 1,200 – 1,500 cases a year total. That number is lower now. It cannot make a statistically significant impact on immigration crime.
If you add mandatory minimums to the mix, that system collapses. Defendants lose the incentive to plead guilty promptly. If they're going to face a five or ten year mandatory minimum sentence, why plead out quickly? ICE lacks the resources to marshal lots of federal cases to trial as case agents. Federal prosecutors lack the resources to prepare for trial, and try, many more immigration cases. Federal judges lack the time and courtrooms to try the cases. (There are about 2,800 federal district judges nationwide, and remember that they handle both civil and criminal cases.) Unless accompanied by a substantial increase in resources devoted to ICE, the Justice Department, and the federal judiciary, increasing time spent on immigration prosecutions means reducing time available for administrative deportations and investigations, all other criminal prosecutions, and all federal justice, civil or criminal. That's before they are convicted: the federal prison system is already overcrowded and it costs about $30,000 per inmate per year. (Convicted aliens cost at the high end of the scale because they are generally held in higher security facilities.) Prosecuting returning aliens goes up, prosecuting corrupt politicians, white collar crime (especially complex white collar crime), gun crimes, organized crime, complicated drug conspiracies, political corruption, and abusive cops goes down. Your wait for trial in federal civil cases goes way up.
I've never seen any credible evidence that more prosecutions or higher sentences deter aliens from returning after deportation. Certainly an alien with a criminal record who is sitting in federal prison is not, at that moment, returning after another deportation and committing more crimes, but the system lacks the resources to make a statistically significant impact through such incarcerations, unless you'd like to pay a lot more in taxes, which you would not. And while you are incapacitating criminal aliens through mandatory-minimum incarceration you are not using those prosecutors, judges, or jail cells to incapacitate other criminals, including domestic criminals who offend at a higher rate.
Mandatory minimums, if applied rigorously, would therefore dramatically reduce federal immigration prosecutions. Of course, they wouldn't be applied rigorously; they almost never are. Instead, the likely outcome is this: Congress would pass mandatory minimum laws covering some illegal reentries. Federal prosecutors would retain discretion of whether to charge aliens under those new statues or under existing statutes without mandatory minimums. Federal prosecutors would use that discretion the way they usually do — to coerce cooperation and guilty pleas. So the length of sentences for aliens returning after deportation wouldn't increase; there would just be more prosecutorial power and discretion and somewhat quicker pleas. The impact of the law would be the opposite of how it is sold to the public.
Mandatory minimums could work differently if accompanied by a general policy shift. If Congress passed mandatory minimums and the Department of Justice said "we're going to focus our resources on prosecuting returning aliens with past violent crimes like rape and robbery and assault and stop prosecuting aliens with past drug or property crimes," we'd be having a different discussion. But that's not going to happen, is it?
Trump's mandatory minimum proposal is crowd-pleasing bunk. It's commonplace bunk, offered by politicians of all stripes, but it's bunk all the same.
Today the airwaves are ablaze with news that John Hinckley, Jr. — would-be assassin of President Reagan — will be released from a mental institution to live with his elderly mother. United States District Judge Paul L. Friedman's order permitting this release comes more than 35 years after Hinckley's bloody assault, which wounded President Reagan, gravely and permanently disabled his press secretary James Brady, and injured a police officer and a secret service agent.
People are outraged. Why wouldn't they be? Assassinations have cast a grim pall over American history. President Reagan was well-liked and is nearly revered in retrospect. The assassination attempt was a formative event in the memory of many people my age. How, people ask, can you shoot four people, one of them a President, and ever see the light of day again? If any act requires permanent confinement, isn't it this one?
The answer should comfort us, not terrify us: the rule of law applies to everyone, even the notorious. (Edited to add: or, at least, it ought to.)
Hinckley was not convicted of the attempted murder of President Reagan — a jury found him not guilty by reason of insanity. Criminal defense lawyers will tell you that it is exceptionally difficult to convince a jury to reach such a verdict. In (another) era of great anxiety of crime, in a case involving a popular President, the odds were weighed even more heavily against Hinckley. If you think that it's outrageous that someone who tries to kill the President could use the insanity defense, bear in mind that the defense has its roots in cases of mentally ill people attempting assassinations. Nevertheless, public outrage led to nationwide narrowing of the defense, notwithstanding the fact that it was rarely used and even more rarely successful.
Now, after 35 years of confinement (with gradually increasing exceptions) in a mental institution, the court has found that Hinckley is suitable for release under the provisions of the relevant laws governing patients committed to institutions after such verdicts:
(e) . . . . The court shall weigh the evidence and, if the court finds that such person has recovered his sanity and will not in the reasonable future be dangerous to himself or others, the court shall order such person unconditionally released from further confinement in said hospital.
It was not a casual decision. Judge Friedman's order is 103 pages long, and builds on a history of other long orders. The order meticulously reviews the testimony at an evidentiary hearing, the unanimous conclusions of multiple doctors (including the government's own experts) regarding Hinckley's mental state and lack of dangerousness, and the history of his gradually increasing liberties granted by the hospital and the court. In addition, the court sets rather rigorous limitations on Hinckley's freedom, considerably in excess of what one would normally see for a convict released on parole or supervised release — for instance, the court limits Hinckley's access to the internet and ability to communicate with the public to head off the sort of attention-seeking and grandiosity that was part of his delusional structure (see page 99-100 of the order).
Perhaps you find Hinckley's release outrageous. If so, ask yourself why. Is the outrageous part that there's a defense of not guilty by reason of insanity? Is the outrageous part that a jury found it applied, in a case where everyone agreed that Hinckley was crazy, and only disagreed about whether he was responsible? Is the outrageous part that such people can be released after 35 years under strict conditions if doctors agree they are in remission and not dangerous? Is the outrageous part that a judge found that the facts here warranted such a release? Or is the outrageous part that some crimes are so notorious that you think they should be outside the rules, outside the rule of law?
Is John Hinckley, Jr. dangerous to society? Doctors don't think so after 35 years, and he's successfully completed many outside visits and excursions to date. Is it dangerous to have a legal norm that the gravely mentally ill who commit violence may eventually be released? I doubt 35 years of forced treatment and confinement is the sort of lenity that leads anyone to violence. What about exceptions to the rule of law? If we ignore the rules and evidence because a particular person is sufficiently notorious, because of our gut, how dangerous is that?
Let me tell you a story about taking clients seriously.
Years ago I had a young client who got into a summer program at Big Prestigious University, or BPU. The Client didn't go to BPU — he went to a community college, but was accepted by an on-campus summer program at BPU.
Client got arrested for having a gun and a bag of serious drugs in his dorm room at BPU. He was turned in by his roommate, a full-time BPU student, who found the gun and the drugs. Having a gun on any sort of campus is a very serious crime in California, and the DA was in the middle of a safe-schools kick, and Client was looking at hard time and a bad record.
Client swore to me the gun and drugs found in his dorm-room dresser weren't his. He said that someone — perhaps his roommate? — must have planted them. Sure, I thought. A BPU student acquired a gun and hard drugs and decided to use them to frame some rando — a rando who was, perhaps, not completely unfamiliar with drug culture. That makes perfect sense. Nothing in the evidence the DA turned over suggested any motive for the roommate to do any such thing. I was deeply skeptical, and planning for a very grim set of choices.
But Client's family had money, so I hired an investigator and had the investigator look into the roommate. Would I have found a way to acquire public money for an investigator if the Client hadn't had money? Good question.
Guess what the investigator found?
Turns out the roommate was fresh back at BPU after a stint in state prison. Roommate went to state prison because he had been stealing stuff — laptops, phones, and so forth — from classmates at BPU. When roommate was caught, he attempted to pin the thefts on friends, and when that failed blamed mental illness. He was currently on probation, and was having some trouble with his probation officer — and might be trying to curry favor.
No, BPU didn't warn Client that he was rooming with a recently released felon with a record of falsely implicating others in crimes and a pattern of blaming mental illness for his conduct against fellow students.
By the way, the same mid-sized DA's office that was prosecuting Client had recently prosecuted the roommate — and had withheld any information about the roommate's recent criminal activity, as had BPU in my discussions with them.
I subpoenaed roommate to the preliminary hearing and told the DA I was going to interrogate him. The roommate appeared, looking terrified. General counsel for BPU appeared, looking concerned. The judge looked angry — she felt it was my responsibility to arrange for a criminal defense attorney for the roommate if I knew that my questioning might trigger a Fifth Amendment assertion. Interesting theory, judge.
The DA had a long talk with a supervisor, and a long talk with the roommate, and came back to me with a deal: drop the gun charge and accept deferred entry of judgment on the drug charge. If Client completed probation successfully, the case would be dismissed, with no conviction. Notwithstanding how much Client and I wanted to put roommate on the stand and eviscerate him, or force him to take the Fifth and tank the DA's case, it was impossible to turn down the deal — the risks were too high. Client took the deal, completed probation successfully, and as far as I know has run into no problems since.
I would be lying if I said that I believed the client when he told me the gun and the drugs. But, thank God, I took him seriously — that is to say, I followed up on what he had to say with the resources available to me.
Just as prosecutors are captured by the system and its culture, so are defense attorneys. It is currently fashionable for defense attorneys to say "clients lie" and "most clients are guilty." I wouldn't agree with either proposition. Everybody lies; I don't think clients lie more than anyone else in terrifying and stressful circumstances. Humans tend to remember a version of events that puts them in the best light, something we normally regard as a mere venal sin. It's just that criminal defense scenarios require a level of precision and accuracy that most human interactions don't.
Being an effective and responsible criminal defense attorney doesn't require believing everything a client says, exactly. The policy could be better described as "trust, but verify." The key isn't to build a defense on the premise that everything the client says is perfectly accurate. The key is to take what the client says seriously and follow up on it, rather than dismissing them out of hand. If you don't, you're not defending the client — you're defending your stereotype of the client.
Today I've got a post up at Reason Magazine reflecting on how three different cultures shape prosecutors.
The Federal Bureau of Investigation's Minneapolis office is conducting an active investigation of the principals of Prenda Law, the notorious team of crooked copyright trolls that I've spilled so much e-ink over here.
Today I spoke with two sources who confirmed receiving a letter from the FBI inquiring about their experiencing with Prenda and seeking information about Prenda's activities. The letter — which I have reviewed — has been sent out on a large scale to attorneys who have represented targets of Prenda's litigation. Here's what the letter reveals:
- The FBI is looking at the various entities Prenda Law used, including Steele Hansmeier PLLC, LW Systems, Livewire Holdings, AF Holdings, Ingenuity13, and Guava LLC.
- Though the letter does not name individual targets, the context makes clear that the FBI is investigating the principals of Prenda Law (with the exception of Paul Duffy, I suppose).
- The FBI has devoted substantial resources to soliciting victim impact in a systematic way, and based on its questions about availability to testify is contemplating prosecution.
- The FBI is focusing on "a fraudulent scheme known as 'trolling'" — which may indicate that the FBI has concluded that Prenda Law principals themselves uploaded their pornography to BitTorrent sites in order to sue people who downloaded it.
Based on my 21 years in the federal criminal justice system, I believe the letter reflects an active, determined investigation in its later stages. The letter represents an abandonment of operational security and confidentiality; it suggests the FBI no longer sees a need for stealth. That, in turn, suggests that the FBI believes it's already developed the evidence it needs to prove the substance of its case (that Team Prenda committed wire and/or mail fraud) and is just identifying as many victims as possible for potential witnesses and to establish the amount of damages. Bear in mind that under the Federal Sentencing Guidelines, the more money wrongdoers made, the more time they're facing.
I'll report more as I learn more. But as I often say — the wheels turn slowly, my friends. But they turn. Team Prenda needs federal criminal defense attorneys, and needs them right now.
This week various political figures took some abuse for writing letters seeking leniency in the sentencing of former House Speaker Dennis Hastert, who got a 15-month sentence for monetary transactions designed to conceal that he was paying off victims of sexual abuse.
I've argued before that if you write a sentencing letter in support of a famous (or notorious) person, the media will report on it in an insipid and sensational way. That's inevitable, and media reaction isn't my focus. My focus is suggesting how to write a letter that furthers the best interests of the defendant and is most likely to move the judge towards a better result.
With that in mind, here are some rules:
This letter is not a vehicle for you to express yourself. A letter supporting a defendant is not an opportunity for you to posture, work out issues, or express yourself artistically. It is an opportunity to help the judge see the defendant as a human being. If you cannot stop yourself from making your letter about you instead of about the defendant, or if you find yourself focusing on how the letter makes you sound, please don't write the letter.
Nobody cares what you think about this case or the criminal justice system. Now is not the time to say that the criminal justice system is unjust or should be spending resources on other things or how far worse criminals get away or how this shouldn't be a crime or this is politically motivated. Go write that shit on your LiveJournal. It will annoy the judge.
For these purposes, the defendant is not innocent. Most likely the defendant pled guilty. Or maybe he or she was convicted by a jury. Either way, the judge is starting from the premise that the defendant is guilty. Appeals and habeas corpus motions — or, maybe, attorney arguments about residual doubt — are the place for discussions of innocence. A sentencing letter isn't. "I know he didn't do it" and "this must be a mistake" dramatically undermine a defendant's statements of contrition in plea cases, and simply annoy the judge in jury verdict cases. If the defendant has done his or her best to accept responsibility and covey their regret and you come in and write "I've talked to him and I know he didn't do it," you are undermining the defense. It's not persuasive.
Don't bother if you don't know the defendant fairly well. A good sentencing letter isn't like a letter of recommendation that a professor writes about one of the 150 students in a frosh cattle-call course. It's something you write if you know the person — if you have a connection to them. Letters by mere acquaintances are worthless at best and damaging at worst.
When you praise the defendant's character, bear in mind they are being sentenced for a crime. The core idea "I was shocked by this case because I know the defendant to be a good person" is okay, expressed carefully. So, for instance, if your friend is being sentenced for structuring monetary transactions to hide the fact he's paying off people he sexually abused as kids when he was a coach, saying "[w]e all have our flaws, but Dennis Hastert has very few" is appallingly tone-deaf and probably hurts the defendant. Praise of the defendant can't ignore the present circumstances, or it seems uninformed or stubbornly blind. "Defendant's behavior towards me has been so kind and decent that these serious charges were devastating" is the right tone.
Don't minimize the crime. Why do I have to tell you this? Don't suggest that the crime isn't a big deal. Even if it isn't. That's for the defense lawyer to argue, not you. You're going to undermine the defendant's attempt to show contrition.
Don't attack the victim. You utter moron.
Don't talk about your yacht. When you're talking about how well you know the defendant and how you and the defendant have interacted, avoid emphasizing things that highlight the defendant's life of privilege and/or power. First, it sounds like you're bragging, which is obnoxious. Second, it sounds like you are implying that rich or powerful people should get lower sentences, will will antagonize the judge. Third, it tends to make the defendant look worse: if he or she had so much, why did they do this? Downplay it.
Humanize the defendant, preferably with private conduct. It's fine to talk about how a defendant has led a life of public service. But the best stories to tell are the ones about how the defendant acted when nobody was looking. Some of the most powerful letters are about the defendant's small, private acts of humanity, compassion, and decency. You are, after all, asking a judge to see this defendant as an individual human being rather than as a statistic — to exercise mercy. What better way that to tell a story about such mercy exercised by the defendant? The letters I like best aren't the ones about how my client paid to attend a charity gala every year. They're the letters that tell the story about how the client visited the company's receptionist in the hospital and took her whole visiting family out to dinner, or about how he or she helped a stranger, or how he or she showed private kindness. "This Congressman supported the Family Leave Act" is not nearly as powerful as "when my mom died Bob stayed up with me all night and drove me to the funeral home and sat with me while I handled her affairs."
Don't tell the judge what to do. Some lawyers ask letter-writers to ask for a specific sentence, or to ask explicitly for leniency. I don't. I don't think it's effective. The judge knows what the defense is asking for — the defense lawyer is arguing it. Parroting the defense lawyer's talking points makes the letters sound too orchestrated. For most letter-writers, you're asking the judge to consider the type of person you know the defendant to be. The right tone is "I ask you to consider these experiences in sentencing my friend" or "when you consider the crime, I ask you also to consider these things my friend is done." The exception is a close family member who is directly impacted by the sentence — "I don't know how we can keep the house or keep the kids in school if my spouse goes to prison."
Not every lawyer agrees with these rules. But I find them more effective and the judges I've talked to find such letters more persuasive.
Lawyers and non-lawyers alike chuckled this week when a federal judge in Texas blasted attorneys –and one attorney in particular — from the Department of Justice in Washington, D.C.
Hughes thundered, “If the pretentious lawyers from ‘main’ Justice knew what they were doing — or had the humility to ask for help from the United States Attorney for the Southern District of Texas — it would not have taken three days, seven telephone calls, three voicemail messages, and one snippy electronic message for them to indirectly ask the court for assistance in ordering a transcript.”
This story displays two elements of the culture of the federal criminal justice system. The first is obvious: federal judges, who enjoy lifetime tenure and are almost never impeached, behave pretty much however they want. The black robe tends to amplify preexisting foibles; a bad temper, free from rebuke and guaranteed lifetime employment, grows steadily from an occasional peccadillo to a notorious habit. Fortunately, once you have reached a certain point in your career, being yelled at by a federal judge is merely bracing, like a brisk walk on a cold morning.
But another cultural truth lurks. There are two types of federal prosecutors: Assistant U.S. Attorneys who work at, and for, the 94 U.S. Attorney's Offices across the country, and the Assistant U.S. Attorneys who work in Washington D.C. at "main justice." The "main justice" attorneys often work in specialized and elite units, and frequently travel about the country "supervising" their cases. Those cases might involve terrorism, or civil rights, or political corruption. This can result in tension between main justice and the local prosecutors. To grotesquely overgeneralize, main justice can see the locals as hicks who don't know how to run "elite" cases, and locals can see main justice as arrogant, not as good as they think they are, and both clueless about and indifferent to local practices.
These are exaggerations, but there are occasional examples. About 20 years ago I was a young AUSA in Los Angeles, assigned to the "Complaints" division. Complaints handled intake, complaints, and search warrants on run-of-the-mill cases that didn't already have a federal prosecutor assigned. One day a team from main justice swept in seeking a search warrant on some "elite" matter. The legal core is the same — is there probable cause to believe the items sought are evidence of a federal crime and will be found at the specified location? — but the formatting and paperwork of warrants vary across the 94 federal judicial districts. Each set of judges likes its warrant applications prepared just so. This team from main justice prepared their warrant package the way they wanted to do it, and ignored my suggestions about how to conform to practices in Los Angeles. "Good luck," I said, not entirely sincerely. Sure enough, half an hour later I got a call from the duty magistrate judge. This man was the most pleasant and welcoming judge I've ever encountered; sometimes he was so nice on the bench that people worried he was making fun of them. "Mr. White," the judge asked, "could you please give these . . . . gentlemen some help preparing the warrant application to conform to the local rules?" asked the judge, using a tone suggesting that someone might leave this encounter in leg irons. I promised to do so. The main justice lawyers returned, fuming, indignant, railing against the fact that some backwater like Los Angeles didn't format its search warrant paperwork in exactly the same way they were used to in Washington. I helped them without comment.
Or there was the time that lawyers from main justice, during an argument on a securities case, blundered into the well. The well is the dead space between the counsel tables and the bench. In some places, it's considered culturally appropriate to walk into the well to address the court, just as it's considered appropriate to address the judge from a seated position in some places. But not in Los Angeles. The federal judge — a gentleman who has verbally flayed the flesh from my bones on more than one occasion6 — blasted them, and they were terrified and perplexed.
What's the point of all this? Well, it's partly about the easy truth that the system is made up of flawed human beings. But it's also about the job of lawyering. Nobody cares how you do it back in your courthouse. You're in this courthouse now, and effective representation of your client requires you to pay attention to how things are done here, however much you disdain the locals. Don't be an arrogant ass, it's bad for your client. Also: federal judges gonna federal judge, so shrug and move on.