Back to Federal Court


I believe strongly that federal criminal trials can be won—the Government, while powerful, is not omnipotent. Because of this belief, I have tried more federal criminal cases than state misdemeanor cases; my first jury trial ever was a bank robbery case in Lee Rosenthal's court. Some years ago, I aspired for a brief time to a practice defending federal criminal cases only. I saw myself taking five or six juicy federal cases a year, traveling from Houston to wherever I was needed most.

By then, though, federal criminal law had evolved so that the game wasn't a whole lot of fun.

The federal criminal defense bar was (and is) crowded with lawyers who think that "everybody gets convicted anyway." They tout their edge in getting their clients shorter sentences by cooperating with the government. Once a client starts cooperating with the Government, whether he gains an advantage depends on him and on the Government. While a lawyer can help a little by making the proper connections (making sure the information about New York gets to the agents from New York) and encouraging the government to act on the client's information, the greatest advantage—and these lawyers' strategy—lies in winning the race to the debriefing table. All else being equal, the guy who cooperates first gets a better deal than those who cooperate later. Some even take this rule so seriously that when the FBI comes calling, even before charges are filed, they hurry their clients in to spill their guts to the feds.

Some things have to be set aside by lawyers racing to be the first to get their clients to sing. . . little things like investigation and research and due diligence that don't really matter anyway when you believe that everybody gets convicted anyway. So these walking violations of the Sixth Amendment threw away not only their own clients' triable cases, but also their codefendants' triable cases. "Nobody talks, everybody walks" stops working when the guy with the most defensible case gives up his right to make the Government prove its case and joins their team.

When a lawyer appears on the case who you know hasn't tried a case in a decade, you have to consider that he is going to do anything possible to dump your client in the grease for his client's benefit, and advise your client accordingly. This doesn't necessarily mean pleading guilty—my clients have chosen more than a few times to go to trial despite being the last standing—but it doesn't militate in favor of making the Government prove its case either.

Then, if the client was convicted, either by a jury or by his own hand, you couldn't do a whole lot more in sentencing than hold the judge to the low end of the guidelines. Sure, there was Michael Levine's excellent 88 Easy Departures providing guidance and inspiration for seeking sentences below the guidelines for reasons other than cooperation with the Government, but at least in the Fifth Circuit such departures were few and far between.

Between crappy V6 lawyers sprinting to rearraignment and rigid sentencing guidelines, federal criminal practice had evolved so that the role of the criminal-defense lawyer in most cases was as a minor court functionary, walking the accused through the system. Being a minor court functionary had no appeal to me, and clients were few and far between who were willing to pay the fare necessary to perform due diligence and  make the Government jump through the hoops, only to possibly wind up in worse shape than the V6s' clients. I always kept a few cases going in federal court, and I had some unequivocal victories, as well as some victories in which my clients didn't wind up any worse off for fighting, but I didn't take a lot of the federal work that presented itself.

Then, like a ray of sunshine in 2005, came Booker and Fanfan, holding that the sentencing guidelines really are guidelines, advisory rather than mandatory.

Booker and Fanfan cracked a door open on a new world of possibility for federal criminal defense. Now, with the right words, an advocate might convince a judge that the guidelines sentence is greater than necessary to accomplish the goals of sentencing. Sure, judges who came up under the mandatory guidelines have been reluctant to flex their sentencing muscles, but every year I see judges becoming a little more comfortable following their sense of justice instead of sentencing by the numbers.

Even though their promise is not entirely fulfilled five years on, there's lots to like about Booker and Fanfan. We're starting to see them bring advocacy back into sentencing, and give defendants—even defendants who put the Government to its proof at trial and lose—a shot at more rational sentences.

While it might once have been rational for the accused to choose lawyers who got them cooperating quickly, the balance is slowly tilting toward real lawyers who make sure they understand the story before the client has to make a life-changing decision. Those who have spent the last 20 years outrunning the bear are not such lawyers, and nothing will ever make them such.

While once being a federal criminal-defense lawyer and a zealous advocate was demoralizing, every year I am heartened by judges who, hearts touched by my words and the words of my clients' loved ones, show mercy for the flawed humans before them.

I think I may be back in the game.


15 responses to “Back to Federal Court”

  1. Well, it seems there were two Supreme Court decisions today that ring a lot of bells in Federal cases. One, a minor cannot be served a life sentence due to their age and status as a minor …not being “responsible” for their actions and lacking “true consent”.

    On The Other Hand, they ruled that a sex offender can be held indefinitely AFTER serving their sentence. I find that one hard to swallow, as I would think that a civil commitment will be better sentenced BEFORE trial. Or, is it alright to put someone severely mentally ill in prison first, then treat him?? I cannot think of any good reason to beat a man because he has a broken leg. So, why the punishment of a person clinically insane by imprisoning him first?

    I think something is really broken here. Or, as a culture, do we need our blood lust slackened first??

  2. We don’t have much luck getting judges to go below guidelines, but you are right, we are no longer beholden to just nodding our head yes. We can go out and gather facts and evidence to support our position that this guy deserves it. While we still lose most cases, at least we can do some stuff at sentencing that doesn’t necessarily involve cooperation.

    But Mark, really. Do you never encourage a federal client to cooperate?

  3. I helped several federal clients cooperate. Some of them got outstanding results in part because of their cooperation.

    Having agreed to play the game it I was bound to exploit its rules to my clients’ benefit, no matter how distasteful to me.

  4. But, once you get them their “benefits”, suppose some committee’ later decides to just keep them imprisoned, break your deal and stuff the judge and his decision under the bus?? That was my point.

    Imagine, Mark, that you did something worthy of being tossed into the Federal Clink over. So, you being a model prisoner, decide to write grievances, file appeal after appeal, and generally jerk off the guards and staff, …being the person who might take to prison life well at all.

    So, someone plants a dime on you, you get accused of something heinous, while not being notified that someone planted that dime. You have no clue, no one is telling, but your fate is on the line. Then, as you are about to get out, your prison programmer breaks the bad news to you that you might not be getting out on time. Or that you’re going to do 5 more years of probation, not mentioned during nor on the plea …no where in your papers. Surprise!! All of that good attorney work down the drain, by a faceless bureaucracy that you cannot go before to even get an decent explanation.

    Think that can’t happen?? NOW they can just commit you civilly, after you did your time, and keep you …as you MIGHT do something not approved of. There is no rule that this decision will be just for Sex Offenders. Or, for something that is now considered a crime which wasn’t a crime when you committed it. Ex Post Facto?? Ha! You just got out of prison, you’re broke and someone has their foot on your neck. So what would you do? This happens every day, my friends. Every day.

  5. Pardon me if this is a stupid question, but how does the average accused person, who is not a lawyer, go about telling the attorneys who go to trial most often apart from the ones who “haven’t tried a case in a decade”? Do reliable review sites exist, or are all the sites that claim to be such really just spammers? (Something tells me that the bar associations have no interest in purging their bad members, and that anybody who posts an honest, bad review of a lawyer anywhere is going to get threatened with a defamation suit.)

    • Ask them. Ask their peers.

      Avvo is a reliable review site (in that they don’t permit reviews from non-clients, and they don’t remove negative reviews from actual clients) but the data provided to Avvo is spotty—that is, not everyone leaves a review of her lawyer.

  6. Mark, for obvious reasons I cannot post my full name for the world to see, so you can post this comment or not.

    Your blogs “If You Lose the Will” and “Back to Federal Court” were truly inspiring to me. So inspiring that I urged my lawyer (who is recently trying to convince me that she wants to try for a plea deal more than 7 months before the case is set for trial) to read them….hoping to get her fired up again to fight the Feds….
    Thank you.

    • Thanks, NL. Lawyers who believe that “everybody gets convicted anyway” would probably say that I’m doing their clients a disservice by spreading this claptrap about actually fighting federal cases. I don’t imagine that it’s an easy thing to stop believing.

  7. You know I agree with the premise of this. But, maybe there should be a disclaimer that NL might not have a case that can be won and that his lawyer, in fact, is getting him the best deal possible under the circumstances. We don’t know what he’s charged with, what the evidence is thus far, what the exposure is for going to trial, etc. so a blanket ‘you should always fight federal charges at trial” probably is misleading, don’t you think?

    I’m sure we would all shake our heads and groan if our clients came to us and said “but read this blog post by this guy, he says we can win!”

  8. No. It’s not what this guy says at all. In fact, I do think this post is incredibly inspiring and should be required reading for anyone who contemplates federal work.

    I went to visit a clients family a few weeks back in a federal case. The brother said “the feds don’t play. They win 100% of the time” That’s what they are told and they believe it.

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