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Jacobs & Dow, LLC

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Both Sides Now

A while ago there was a popular song by Judy Collins called “Both Sides Now”. Its theme was that we gain an enhanced perspective through experience and maturity, an ability to better see and understand both sides of an issue.

Sometimes the people who write these songs are on the money; they actually say things 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 job done right and in the right way.

It is not uncommon in Federal court for prosecutors to push defendants and their lawyers hard to make monumental decisions in a very narrow window of time. Co-operate or suffer the consequences. “The boat,” they say, “is leaving. If you don’t get on now disaster will follow.” Except in those rare instances where the boat will turn back—–“Mr. Prosecutor would you like to know where Hoffa’s body is buried”—-a defendant may well miss the boat and suffer the predicted disaster.

Lots of times when this happens, it shouldn’t. One of the reasons it shouldn’t is because the prosecutor doesn’t understand the defendant’s side. Scared, uncertain, suspicious and overwhelmed with distrust, the decision mechanism is paralyzed. The prosecutor’s comprehension deficit is often accompanied by a dispiriting belief that one who commits a crime has somehow forfeited all rights to be treated fairly and with a modicum of respect.

High on my lawyer’s wish list is that all Assistant United States Attorneys be required to take a one-day leave of absence and have to sit with a defendant and review, line by line, one of the multi-page plea agreements that spew forth from the United States Attorney’s word processors. These documents would test the reading comprehension skills of Learned Hand, Henry Friendly, and the entire staff of the Kaplan SAT review course, let alone those of someone with less than a high school education for whom, like many defendants, English is a second language and literacy a discarded aspiration. These letters make the Kellog-Briand Pact read like the Talk of the Town section of the New Yorker.

At the time of the guilty plea, the judge is going to ask the defendant if he or she has read the entire document. The defendant and counsel, then, must go over every word of the agreement. It is very tough sledding. Unless you’ve been there you have no idea.

Plea agreement letters are typically five or six pages, single spaced, densely packed with all types of information – the charges, the penalties, the rights waived and those retained and, of course, a brief exegesis on the sentencing guidelines. These letters are ponderous. To paraphrase a famous book review, they consist of an army of words marching across endless pages strangled in a thicket of ideas.

Reviewing the waiver of the basic rights – to a trial, to testify or to remain silent, to require the Government to prove its case beyond a reasonable doubt, to present and cross-examine witnesses, to a unanimous verdict – is tough enough. Imagine explaining the sentencing guidelines. I’ve had clients with post-graduate degrees turn to babbling dolts when trying to comprehend the nuances of the guidelines’ “relevant conduct” provisions. Personally, I can never complete an explanation of this legal rubix cube without throwing the guideline book against the wall and hitting my forehead with the heel of my hand. 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 certain parameters within which she may impose your sentence.”

“Sorry? Oh, the fact that you have no record? Well 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 what the Probation Officer does.”

“How’s that? No, no, sorry. Even then it’s not binding. It’s still up to the judge.”

“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 I stayed through lunch, we’re just getting to the good stuff and I want to go over this thoroughly. Before you go, though, could you please remove all the sharp objects from the interview room. You’d better take my belt and shoelaces as well.”

“Well relevant conduct means, Emilio, . . . . .”

It would be wrong to exclude judges from this critique (on the theory, I suppose, that if you’re going to burn bridges you ought to knock off all crossings along the entire tributary). After traversing the confusing shoals of the plea letter, the next onerous hurdle for a defendant is actually entering the plea.

A good number of judges feel that unless a person completely prostrates himself before the altar of the court, the plea is somehow invalid. It’s not enough that you have to comprehend being prosecuted by The United States of America, that you have to say out loud before God and everybody (including your family) you are guilty of committing a federal offense, that you face a likelihood of incarceration and that you must try to do all this while appearing to maintain a modicum of composure.

Before many judges, a defendant must complete a multipage form which requires written responses to everything the judge is going to ask out loud in court at the time of plea. Defendants must manuscript in their own words and writing their actions that constitute a federal offense, acknowledge they are aware of all the penalties the offense provides and that they waive certain rights – to a trial, to testify or remain silent, to cross examine the prosecution witnesses, to call witnesses, to require the prosecution to prove its case beyond a reasonable doubt, etc-and list a whole lot of other information, including nicknames.

“Well, yes, Emilio, this is exactly the same stuff we did with the plea letter for the last two hours, but we have to do it. Why? Emilio, I really can’t tell you why. I just know the Judge says we have to do it.

“Aren’t these also the same questions the Judge is going to ask you when we stand up in Court? Well, yes they are.”

“So why do we have to do it? Look, Emilio, I didn’t make the rules. I’m just trying to get you through this alive. If the Judge says we have to do it, we do it, ok?”

“Now the next part is where you have to write out in your own words and in your own handwriting exactly what you did that makes it a crime. No, no, Emilio, I can’t write it for you. You have to write it yourself and you have to do it in your own words.”

“What should you say? Well, I really can’t tell you. What do you mean you don’t know how to write? Well do your best.”

“What’s that? Would the trial be shorter than reading the prosecutor’s letter and filling out the form for the judge and then standing in court in front of the judge to review all of the documents and to be asked all the same questions? Well, why do you ask that, Emilio?”

“Oh, I see. You think it would be easier to go to trial than to plead guilty. Well, you’re not the first client who has told me that.”

I guess the plea form may provide protection against the occasional defendant who tries to withdraw his plea or attack it by a habeas proceeding down the road. That layer of protection, like the well-worn quip about wearing a belt and suspenders, is superfluous. The defendant in open court signs the plea letter and the judge addresses the defendant on the record. That’s either good enough or it isn’t.

The plea petition adds nothing. Never mind that anxiety-riddled defendants have to be bolstered to muster enough courage to stand in court and admit their guilt. Making them complete a term paper on why they are guilty and then stand in court for 40 minutes or more confronting that fact serves no real purpose other than to create paperwork, agita and headaches for lawyers trying to get their clients across the goal line in spite of themselves and, more importantly, for the clients.

From the other side, the defendant’s side, there are unnecessary hazards in the road to pleading guilty. They make the process more difficult than it has to be. They just make a difficult process even harder. Seeing a problem from both sides is, I think, helpful.