Saturday, July 29, 2006

When Judges Punish For Exercising One's Right To Trial

Professor Podgor over at White Collar Crime Prof Blog has a post about what is quickly becoming a trend in sentencing issues sending a white collar criminal away for life.

Here is the rub. We often complain that the poor get screwed while the rich usually get a slap on the wrist. The Enron scandal got the attention of Washington, and as Washington is wont to do, it over-reacted. Now we have the spectacle of watching(usually)old men, who have worked gainfully for years, provided jobs and support to others, supported charities in their communities, and who are not well suited for long term imprisonment to begin with, be carted away for 20 or more years.

The proletariat in me says, "well they do it to twenty something minorities all the time, why not the fat cats? The realist/conservative in me says "It costs me a ton of money to care for these guys and the chance one of them will commit another crime is next to nothing so, what's the point?

I am sure that deterrence is one point, but deterrence only works when it punishment is used uniformly. You see, the government is giving the store away on sentencing on these cases...If you waive your right to a trial and plead guilty.

In the case Ellen Podgar is talking about above, the co-defendants who forwent trial received 28 months. According to the Miami Herald, the defendant in the above case faced a minimum of Thirty (30) years if convicted. His co-defendant's faced a maximum of Six(6)years, and received far less.

Professor Doug Berman makes some keen observations on the effect this has on the right to a trial here.
Berman's money quote is as follows:
" The government is, of course, eager to send the message to white-collar defendants that going to trial could cost you the rest of your life, but pleading guilty and cooperating will likely only lead to a slap on the wrist."

Now I am not arguing that the government "has a right" to try to save us the money and the time it takes to try a case. Plea bargaining makes the system work more smoothly and moves out cases that do not need a trial to resolve. However I would agree with Ellen Podgar when she says:
" With sentence differentials like these, it may start coming down to whether the accused is willing to take a risk, as opposed to whether the person believes they are innocent and have a constitutional right to a jury trial."

No one should have to face a choice of being able to walk away with a veritable slap on the wrist if he pleads but if he puts the government to the test he gets life. It is not only inherently unfair, (after all if the case is worth 28 months without a trial can it really be worth 30 years with one?)but it begs the question, are we in the business of doing justice or are we just here to process arrests. Saving money is great, but not at the expense of justice.

Let me be clear here. I am not suggesting jail for the banker here is certainly required. What I am afraid of is that someone who is not guilty will plead guilty to avoid a longer jail sentence if convicted than if he pleads guilty. I am not for the imprisonment of innocent people. Sentencing the guilty to life on a white collar case sends a message that even if you think your innocent, it is better to take the deal. That is wrong.

I often hear people say if someone pleads guilty then they must be guilty because "they would never say they did something they didn't do, even if it meant life in prison"... of course life in a federal prison is never facing them when they say that. Thirty years...That's a long time in prison, especially when no one got physically injured and the chance of recidivisim is nil.

I hope what sentence and plea bargaining in cases like this doesn't deter the wrong thing. It is meant to deter someone else from committing the same crime. I don't think that works. I just hope it doesn't deter an innocent person from seeking to explore that innocence at trial.

Sunday, July 23, 2006

A Hellacious Trip Home: The Illegal Imprisonment Of The Weary Traveler

My son, Frank, was tired after almost 4 solid weeks of arduous work learning about the US Political System and Political Communications at the Jr. Statesman Foundation's Summer College Program at Northwestern University in Evanston IL. The kid left the day school here ended, and then started the 6 day a week, 12 hour a day program to learn about how our country runs, and how to debate. He and his fellow Jr. Statesmen worked very hard taking college courses conducted by college professors for 6 hours a day, then preparing and participating in Model Congress debates for 2-3 hours each night.

Frank had earned superlative grades at Northwestern in the classes and was selected as a "Powerhouse" debater (one of only 6 out of the 60+ students by the professional staff), and also selected one of 3 top Speakers by his classmates. He was the only student to win both designations. After graduation, we celebrated with a great meal at Chicago's Grill on the Alley and a tour of the city's sights. The next morning it was off to O'Hare.

Along with over 150 other passengers we left Chicago O'Hare Airport on United Airlines Flight 680 headed for LaGuardia Airport in NYC on Friday at 12pm. Normally it is a two hour flight. Unfortunately, Friday last was a terrible day for traveling to the NY area. Now it is never a good day to fly into LaGuardia (nor Kennedy or Freedom/Newark either.) They have one of the the worst on time schedules around. Friday however they were shut down for most of the day with blasts of wind and lightning that caused massive flooding.

Air Traffic Control entered our plane into a series of holding patterns over Pennsylvania. More than a few times passengers on the flight thought and spoke about the heroic Americans who were aboard United Flight 93 who died on 9-11-01 bringing their plane down in a farm field not too far from where we were holding rather than allow the Islamic terrorists who had hijacked her to crash her into a building. Talk then came around to the way the President was handling the war. There were a lot of Midwesterners on the plane who want to like the President and trust the government. There were a lot of New Yorkers who have grown inpatient with the government and especially the President. I liked the respect both sides of the debate showed the other. I liked that Frank was so up on the issues and spoke about them so well that other passengers commented on his knowledge and presentation.

After a couple of hours of hovering, we needed to refuel. We landed at Harrisburg (Pa.)International??? Airport. That's when Hell took over. After refueling we were denied permission to take off, as Queens NY was under the siege of Mother Nature. Ok, most of us could understand the prudence of not flying into a lightening storm with 80+ MPH wind gusts. However what we couldn't abide was the refusal of TSA to let us off the plane. For over 7 hours we were held captive on the flight.

We were told that the airport didn't have a gateway to get us off the flight. Then we were told they didn't have a staircase, then we were told there was no tow bar to get the plane out of the gate once we went in. Finally we were told the truth. There weren't enough TSA officers to check us back through the gate if we left to get food or take care of other bodily functions. The cafe on the "right" side of the security gate was too small to handle the whole plane so some of us would have to go to the McDonald's on the other side of the gate and TSA couldn't handle us.

Seven hours of being on a cramped dark plane. Seven hours of baby's crying and people bitching and heat. Little to drink, and no food except for a few oat bars that tasted and had the consistency of cardboard. Seven hours of nothing but cellphone calls to loved ones telling them what was happening as if we had any idea.

It occurred to me that this is a microcosm of how our government is dealing with the terror threat. Screw our citizens to protect them??? I am tired of the mishandling of the domestic terror threat. Spying. Torture. Constant fear of our own neighbors. Threats to our newspapers and their reporters for telling us what our country is up to in our names. Holding prisoners without charging them and refusing to let them talk to their lawyers. Forcing children and Moms and old people to stay on a plane for 7 hours because the government can't get their act together.

Call me un-American I guess, but I am just plain tired of the incompetence and arrogance of this administration. I am tired of a President who has no idea how to handle foreign affairs. I am tired of his Texas Mafia and how he runs the country by poll. I'm tired of hearing that everytime anyone criticizes this administration for the way it is handling things, they are un-American or a traitor. I can't wait for November. I have every intention of showing them just how tired I am, when I get to the ballot box and register my vote. I will be encouraging others to do the same.

Finally a little after 9 pm they let us out. An obnoxious 20something who was the customer service rep told us that he was only going to announce the flight once so if we missed his announcement we were spending the night in Harrisburg. What an obnoxious bastard. A number of folks rented cars and cabs to go to NY. Frank and I stuck it out and went to the Capital Cafe on the "right" side of Security. We were repaid for staying by finding out that we could finally get into LaGuardia by midnight.

I will spare you the fiasco that United created at baggage claim (for more on consumer's complaints with United go here) Suffice it to say I will do whatever I can to avoid United in the future.

Meanwhile a big That Lawyer Dude thanks to the staff of The Capital Cafe at Harrisburg Pa. airport for staying open for us, even though the food choices had dwindled to frankfurters, ham sandwiches and chips with salsa. (And that goes for the kids who worked at the airport McDonald's too.) The hot coffee was appreciated as were the smiles and the understanding.

Sunday, July 09, 2006

The House of Representatives is Wrong on Immigration

The House of Representatives is Wrong on Immigration

The House and the Senate will be be taking on the immigration issue and trying to compromise the two very different versions they have passed. After listening to House Republican leaders, we have a better chance of compromising the Israeli-Palestinian conflict between the Menachem Begin and Yasser Arafat...and they are DEAD!!!

If I hear one more House member tell me, that they are not anti-immigration nor anti-immigrant one more time, I might throw up. The House will not talk about a guest worker program until we "succeed in securing the border". How about securing the nation first, then the border, then we can talk some more. We have 3 Million people for whom we cannot account. Why doesn't that bother these Bozos. Opposing any immigration is the one thing that will get them re-elected in their gerrymandered districts. It is not a position of leadership. The Senators are not going to agree to that, unless the President takes the heat. Problem is, the President is actually leading by not agreeing to the House's garbage. He understands that he governs a nation, not a sure thing district in West Podunk. He is a lame duck and can secure a positive place in history by not blowing this opportunity to stem the flow of illegal immigration, while securing the safety of our nation.

The House's position is pure hyperbole. We can in fact secure the borders, punish people who cheated on coming in and against those that hire them, increase our Homeland Security and still not destroy the economy of our biggest cities or the hopes and dreams of millions of our own citizens... the people who love these other people.

We do not have to just punish and throw out people who, though they cheated to get in here, have become part of the fabric of our community. They are coaching our kids in Soccer, forming relationships with citizens, cleaning our offices, running businesses. They are Parents, and bothers, and sisters, and grandparents, of Marines fighting for our country, and kids who are playing with ours husbands and wives to our children.

They hope against all hope that American politicians who have booted the Immigration issue for years, and who made it both necessary and possible for the present illegal immigration situation will rise to the occasion. They will be sadly disappointed, Leadership seems beyond most members of Congress. I made the case for the Senate bill here. The homeland security issue alone should be enough for the House to support it.

As long as these "futile" feudal House princes (That Lawyer Dude being "punny") insist it is "their way or the highway", there is not going to be a compromise that will fly in the Senate. They deserve to be punished at the ballot box, but they will not be. The Republican Senate however may be.

In states where the Republicans have candidates for the senate this year, the pro immigration lobby needs to have the same intensity they had as the Senate considered the bill back in the spring. Let people know, and remember, what it means if all the illegals go home at once. Who knows maybe it will effect some republican House memebers too.

Now lest you think I am advocating overthrow of the Republican Senate majority or the Republican House majority, I am not. I am saying that the Republican leadership in the House is not leading and they need to pay for that with a defiant Senate opposition and a smaller advantage in their house. I do not usually vote on one issue. Even I may make an exception this year. Not because the immigration bill is the most important issue to me, but because the House Republican Leadership needs to learn a lesson about being smug. For the sake of the Republican party and the nation, they better hope that people like me do not feel the same way in two years.

Thursday, July 06, 2006

A Proud Father Returns To The Blog

Hi I am sorry I have been away for so long. It is just that for the last month I have been splitting my time between practicing law, raising money and awareness for Scleroderma and the Scleroderma Foundation, and being both a full time Dad and part-time Mom to my two son's.

As most of you who read this blog know, my beautiful wife MaryRose has been afflicted for the last nine years with Scleroderma. It has not been an easy fight for her or our family. I stroved to keep things together even when frankly I thought the world was falling apart. It has rarely been easy, but always been worth it. Over the years, MaryRose has slowly lost her ability to walk distances and her physical strength and stamina has been greatly reduced. She suffers from cataracts which render her blind in the sunlight due to the steroids she takes. She lives a half life and misses a lot of the good stuff. However it is better than missing all of the good stuff so we usually look at the glass as half full around here. Besides we are confident that a drug that will better her lot is right around the corner.

For almost Eighteen years now, I have also been a Father to two wonderful sons. Though very different in temperament and talent, they share certain values that make me proud to be their dad. They are both very honest. They are dependable. I can count on them to complete any task I give them. They are indispensable to me in the office and at home. They too have had to deal with a lot of things kids their ages shouldn't have to deal with, all things being even.

Probably in large part due to their mom's illness, they both share an empathy and sympathy for those less fortunate, although they may handle it differently. Sal my older son is very generous and will participate or donate his money or time to charity. He really doesn't talk a lot about it. He expresses his emotions about the disease and about suffering through the music he makes. Frank my younger son is more hands on. He will organize and run events, he will take more time out of his schedule to console and listen. He is my wife's main caregiver when I am away. Both entertain us. Sal with his tremendous musical talent, Frank with his ability to improvise funny stories and speak in various voices. Both are very fine students.

June was graduation and moving up month. I attended Four concerts and four separate awards nights. I took pictures at Pre-Prom and I watched both boys in their formal ceremonies: Sal's graduation and Frank's moving up program.

Sal's big award was the Louis Armstrong award for Jazz musicians. He has led his school's jazz band all year on Tenor sax but he anchored it for the previous three years on Baritone Sax. He was also a All-State Jazz alternate selection on "the Bari" and of course was again in the All county jazz band. Additionally Sal began teaching younger students how to play. His spirit of giving back to others and his patience with children and interest in teaching, awes me.

He also won a number of awards for his work on the High school speaks and debate team. His graduation was a tough one for me, in that I coached Sal for many years, and so not only is he leaving but so are so many kids that meant so much to me over the years. Sal has had an amazing gift for picking good friends. It is a tribute to his personality. Sal graduated with honors. He is heading off to study the Middle East and International Relations in Washington DC. I am sure this blog will be featuring some stories about him and his studies as the years wear on.

Frank has always been "the little brother". A tag along to Sal's many games, concerts, and other pursuits. This year Frank continued however to shine himself. Frank is interesting in so many ways. He is quiet much of the time. He is humble but not falsely so, and he has a confidence that belies a number of physical ailments that have been debilitating.

Frank was this year's student council president. He wanted this to be a meaningful year for his classmates and himself. His student council succeeded on many fronts. They raised a lot of money and awareness for Cystic Fibrosis and The Scleroderma Foundation. Throughout the year I saw Frank represent his classmates by taking their issues to administration and pushing for change. I also saw him become a sounding board for kids who were going through their own kind of Hell. Illness, divorce, bullying, death, suicide, Frank was often the first person they would go to. He would push them to Guidance counselors, teachers and sometimes he brought them to me to help. Othertimes. When those adults weren't getting through, they asked Frank to lead and befriend a suffering kid or speak to the bully.

I was amazed at his ability to get people to listen to him. Students, teachers, administrators and even other parents would come up all year and tell me stories about my "little boy." I would sit and wonder who they were talking about, because at home Frank is not the President, he is my comic relief. As the year has worn on he has done some amazing things for and with people. He has also kept up top grades.

At the time of the Moving up assembly, Frank recieved two big awards. He was first chosen by his teachers as the "Core student" the valedictorian of his section so to speak. Moreover, however, he was selected as the winner of this year's "Bartels" award (named for a former teacher and community leader) for the student that overcame great personal struggle and still succeeded showing courage and perseverance.

In giving the award, the Vice Principal made a point that taught me a lesson. I will use his words:

"Although facing difficult personal issues at home...Frank still came to school everyday ready to work and succeed. However it wasn't his academic success that so impressed his fellow students and teachers. Rather it was the way Frank dealt with (his peers and everyone else that he met.) It is said that his ears are bigger than his mouth, yet when he speaks, everyone listens..." Wow. Now there is a lesson for every lawyer if I ever heard one.

Right after the last ceremony, Frank, MaryRose and I flew off to set him up in a summer program at a college out west. He is spending the summer on a college campus, learning about one of his favorite subjects: US Government. It is a very rigorous program and I am sure Frank will do well in it. Sal is working in the law office with me this summer helping me on a book I am hoping to write and working on our civil rights cases. In all it has been an exhausting emotional time. I have not have much of a chance to put together these blogs. I also would not have traded the last 30 days for anything in the world. What a great month this was.

Thanks for letting me brag a bit. Tomorrow I will return with all the things I have been thinking about for the last 30 days. In the meantime visit our sister blog Long Island (Criminal)Trial Law