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.