I’ve made my living the past three decades plus representing people charged in federal criminal cases, mostly here in Atlanta. The news the past couple of days has been dominated by three other federal criminal matters, the case in Virginia against Paul Manafort (as I’ve mentioned previously, this man is in an unfortunate situation but has a great first name), the guilty plea yesterday by attorney Michael Cohen, and the sentencing hearing a few hours ago where the Judge imposed 63 months on the unfortunately named Reality Winner for releasing secret information to a news organization.
The internet has gone wild over the jury trial and partial verdict involving Mr. Manafort, and anyone who has wasted time reading this blog knows about federal sentencing hearings and trials, and likely understands that Manafort’s sentence can be calculated as if he was found guilty of all the charges. That’s right troops, the hung jury on 10 of the crimes makes no difference because under the foolish experiment called the Sentencing Guidelines the Judge can sentence Paul based on conduct that he was even found not guilty of committing! I remember a case I handled around 20 years ago where I won most of the charges but the prosecutor, referring to the rule authorizing use of acquitted conduct, asked for a much longer sentence. The judge agreed with me, pointing out that Mr. Kish “cheated them fair and square at trial.” That Judge always made me laugh, at least until he ruled against me or gave my client a lengthy sentence.
An attorney for President Trump, Michael Cohen, has pled guilty to, among other things, supposedly structuring some payments for the benefit of the “candidate” during the 2016 presidential election campaign. I’m not going to weigh in on politics in this case or the process or likelihood of some later “cooperation” by Mr. Cohen. Instead, I want to talk about the sad fact that a member of the bar admitted to committing a crime. Lawyers sometimes get a bad rap, and there’s lots of nasty jokes, e.g., “what do you call 100 attorneys at the bottom of the ocean?–a good start, ha ha!” However, my experience has been that the vast majority of attorneys are among the most honest people in our society. Sure, we have to be aggressive from time to time and need to press an argument to the point where it sounds stupid occasionally, but that is how the system works. Our clients need for us to be aggressive, because the lawyers on the other side of the courtroom are doing the same for their clients. I feel bad when a criminal case involves an attorney who crossed the line from advocacy to crime, for these cases perpetuate the unfortunate stigma attached to our otherwise honorable profession.
Finally, we get to Ms. Winner’s sentencing hearing this afternoon in Augusta. I know one of the lawyers in the case, went to law school with the Judge, and have matters against the prosecutor’s office that handled the case for the government. Just like the Manafort and Michael Cohen cases, Ms. Winner’s situation was made more difficult because of the intense public scrutiny. I have now way of knowing whether the “deal” or her ultimate sentence were fair or not. I only know that all of the professionals, meaning the attorneys in the case, had a difficult time because of the publicity and national security aspects of the case.
Most good criminal defense lawyers prefer that their cases not involve a lot of publicity or notoriety. The lawyers in these three cases had no choice and needed to do their jobs in spite of the white hot glare from the spotlights. It makes the work more difficult.