I'm a morning person. I'll get to the office a little after five in the morning. It gives me some "free time" -- no calls, nobody else -- which is good thinking time. This is when I usually do my posts. And sometimes, when I think about what I'm going to write about on the drive down, I have an epiphany of sorts.
I had one today.
It was, "Jesus, am I a crappy lawyer."
I'm preparing a sentencing memorandum for a Federal case, and it dawned on me, when's the last time I did it for a state case?
To be sure, it's not customary to do that. Frankly, in a lot of cases, it makes no difference; you know your client's getting community control sanctions. And it's not like when I'm standing at the podium with my client and the judge says, "Counsel, do you have anything to say on behalf of the defendant," I shrug my shoulders and say, "Up to you, Sparky." I'm pretty good on my feet, and my entreaties on behalf of my client are often impassioned.
Today's sentencing tip. If your client's been in jail since his arrest, use the old Samuel Johnson quote. "Your honor, someone once observed that the prospect of being hanged focuses the mind wonderfully, and I think spending the last four months in a jail cell has had the same effect on Deron here," and then launch into a spiel about how the time behind bars has led Deron's to new insights on how to avoid that happening in the future. The quote will have one of two effects on the judge: she'll find it mildly amusing, and impressed with your literacy, which will probably benefit your client, or she'll think you're an asshole who likes to show off by quoting dead white men, which probably won't. The moral here: know your judge.
Back to our regular programming. But still... since I've been writing this blog -- eight years come May -- I've been stressing that sentencing is the most important stage of the criminal justice system, because that's the end result in over 98% of all criminal cases: 97% plead, and the government wins at least half the remainder. You do the math. So why not concentrate the maximum effort there?
You don't have to reinvent the wheel each time. The first thing your memorandum needs to discuss is the law, and that's the same in every case. You point out that the appellate courts have held that if the judge doesn't consider the purposes and principles of sentencing under 2929.11, and the seriousness and recidivism factors under 2929.12, the sentence is contrary to law. You don't need to quote the law; just tell the judge that he has to consider it. You leave out the part about the standard which appellate courts use in determining that, which is not merely deferential, but downright obsequious.
What you'll have to change on a case to case basis is the application of those factors to your client. You don't have to go through each one, because most of them won't apply anyway. Pick your strong ones -- nobody got hurt, and the defendant is very remorseful -- and stress them. You also have to tell the judge about your client. Yes, the PSI will do that, but the PSI's rendition will be at best neutral. You're not. Again, pick the best reason for your client not going to prison (or not going for as long) -- he's got a strong family support system, say -- and go with that. One last thing: it's not a bad idea to have your client write out a statement accepting responsibility, and attach that to the sentencing memorandum.
This doesn't have to be a major project. Nor should it be; chances are, the length of the memorandum is inversely correlated with the likelihood of the judge reading it. Figure out what your best argument is for your client, and make it, as succinctly and forcefully as you can.
Other than the work you have to put into it, which shouldn't be much more than an hour or so, there's no downside; your client's not going to do any worse.
Unless you start quoting dead white men, maybe.