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Jacobs & Dow, LLC


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In Personal Injury, Criminal Law And Other Legal Matters

A Question Of Perspective

It is not uncommon for federal prosecutors to ride defendants hard to make gargantuan decisions on a very short time leash. “The boat” as they say, “is leaving. If you don’t cooperate now the consequences are disastrous”. Except in those very rare occasions when the boat will turn back- “How would you like to know where Hoffa’s body is buried?”-it may well be that a defendant
will miss the boat and suffer the anticipated disaster. Often when that happens, it shouldn’t. And one of the reasons it shouldn’t is because of an inability to understand the defendant’s perspective.

High on my lawyer’s wish list is that all AUSA’s be required to take a one-day leave of absence to sit with a defendant and review, word by word, the entirety the multi-page plea agreements that spew forth from the Government’s word processors. These documents would test the reading comprehension abilities of Learned Hand, Henry Friendly and the entire staff of the Kaplan SAT Review Course, let alone the abilities of someone with less than a high school education for whom, like many defendants, English is a second language. They make the Kellog-Briand Pact read like the Talk of the Town section of the New Yorker.

Unless you’ve been there you have no idea. Remember, the Judge is going to ask if the defendant has read the entire document. The basics are tough enough-the right to a trial, to testify or remain silent, to require the government to prove its case beyond a reasonable doubt, to present and cross-examine witnesses, to a unanimous verdict- but imagine what it’s like explaining the guidelines. As Gertrude Stein said of Oakland, “There is no there there.”

“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 the eggs in a Pillsbury 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 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 . . . . .”

There was a Judy Collins song several years ago, called “Both Sides Now,” about the enhanced perspective gained through experience. The more experience, the better perspective; the better the perspective, the more you understand, the easier it is to get to the right place in the right time. Sometimes the people who write these songs are on the money.