Both Sides Now

A good while ago there was a popular song by Judy Collins called “Both Sides Now”, a commentary on the enhanced perspective gained through experience, an ability to better understand both sides of an issue. Sometimes the people who write these songs actually are right and what they have to say is worth listening to. That’s the case with this song: the more experience, the better the perspective; the better the perspective, the more you understand; the more you understand, the easier it is to get the right job done in the right way. Unfortunately, the reverse is also true.

It is not uncommon in Federal courts for prosecutors to push defendants (and their lawyers) hard to make weighty and complex decisions in a very short amount of time. “The boat” as they say, “is leaving. If you don’t get on now the consequences are disastrous.” Except in those rare instances where the boat will turn around—– “Mr. Prosecutor, would you like to know where Hoffa’s body is buried”—-it may be that a defendant will miss the boat and suffer the anticipated disaster. A lot of times when that happens, it shouldn’t. And one of the reasons it shouldn’t is because the prosecutor cannot understand the defendant’s perspective. A prosecutor often cannot understand the other side.

One of my fantasies is to have each AUSA take a three hour leave of absence and sit with a defendant and review, word by word, any one of the multipage plea agreements which spew forth from Government computers. These are documents that would test the comprehension abilities of the drafters of the Kellog-Briand Pact, let alone the intellectual limitations of someone with less than a high school education for whom English is a second language. And this is just the basics—-waiver of rights, total exposure of 10/20 years, no guarantees. Imagine what it’s like when you get to the guidelines

“Well, you see, Emilio, this is based on a series of points which, when totaled together correlate with a grid which provides the judge with certain parameters within which she may impose your sentence.”

“Sorry? Oh, the fact that you have no record? Well, you see that’s like eggs in a premixed cake mix, it’s already calculated in. It’s part of the point system, you see.”

“What’s that? How can I guarantee that the way I total up the points will be the same way as the way the Judge does? Oh, I can’t do that, Emilio, that’s up to the Probation Officer.”

“And what does it mean that the prosecutor totals up the points the same way? Well, you see here in her letter, she says there’s no guarantee that her calculations are binding on the judge either.”

“What does ‘relevant conduct’ mean? Oh, I’m glad you brought that up. Just hold on a minute. Marshall, would it be ok if we stayed through lunch, we’re just getting to the good stuff, and I want to go over it thoroughly. Well relevant conduct means . . . .”