18 August 2003
I've been watching the tapes the Eastern District of Virginia makes you watch before you can be on the court-appointed lawyers list. Most of it is pretty worthless because it is a tape of a CLE held sometime in the past and they don't give you the CLE's booklet (the most important item for the majority of CLE's). Like most CLE's the majority of speakers are well practiced individuals who say things like: "as we all know from the Grtycinszky case and rule 55b we can't raise certain objections at trial and I've spelled all this out in my outline on page 189." Then there is the full third of the tapes (all 12 hours) which go something like this: "Questions? Yes Mr. Smith?" This is followed by a 5 minute lecture/question which I cannot hear because there is no microphone anywhere but at the dais; it is reminiscent of the old Peanuts cartoons where all you hear from the adults is Waa, waa, wa, waaaaah. Then the lecturer says something to the effect of "Yes, you are absolutely right and if you apply those cases in the manner you suggest you will master the practice of federal law."
I've really only gotten 3 things from the tape:
(A) A judge stood at the dais and told the attorneys how he and the other attorneys who had been tapped to become federal judges were absolutely shocked at the straight-jacket the federal sentencing guidelines put the judges in. He admitted this was because very few of them had ever practiced criminal law - it's such a comforting thought that few federal trial judges have criminal experience (and I'm sure the majority who do have been prosecutors). If so few trial judges have the relevant experience one must wonder about the experiences of those with enough political pull to become appellate judges. Not that the trial judges do a poor job with what little they have left to do.
(B) Another judge stood at the dais and told how he and a large number of judges found the guidelines unconstitutional when they were first imposed and how he still believes they are unconstitutional even though he must follow the contrary ruling from the federal supreme court.
(C) A well respected local trial attorney laid out the rules for playing the "Federal Defense Game" in E.D. Va:
The Federal Defense Game (as played in the Eastern District of Virginia):
(1) Prosecutor you can charge whatever you want; Defense, your client must plead to the greatest charge
(2) Prosecutor, you can take as long as you like to prepare your case - you can take as long as 20 years if you like; Defendant, you have between 30-70 days to be ready for trial.
(3) Prosecutor, you can bribe witnesses by giving them their freedom: you can give them a 5k1, you can decide not to prosecute them at all, you can decide what to prosecute them on, and you have all the discretion as to how much time you take off or recommend to the court they take off; Defendant, if you so much as speak kindly to a witness it will be suggested that you have influenced them in some way.
(4) Defendant, if you go to trial you lose "acceptance of responsibility" and if you do not plead guilty 10 days prior the prosecutor will oppose you getting the 1 extra point award-able for "acceptance of responsibility."
(5) Prosecutor, you get to set out plea agreements in which you get all the discretion; Defendant you get no discretion and must cooperate as much as the prosecutor desires. These plea agreements will keep the Defendant from appealing any upward departures but allow the prosecutor to appeal any downward departures.
(6) If you go to trial, Defense, we will never, ever let your client cooperate (thus no lesser sentence) even if he can solve the Kennedy assassination.
(General Overarching Rule, by which all others must be interpreted) Not only shouldn't you play, but if you decide to play you better agree to lose and you better agree to lose early or we take our 5k and go home.
(7) And as a final bonus, if you do go to trial, lose and have a salient and powerful appeal point which should vindicate your client - you get to go to the 4th Circuit.
Lovely. When I first set out to begin practice in the federal courts I was drawn by the higher pay and the prestige associated with such a practice. Now I find myself wondering whether I want to associate with anything which is so obviously unconscionable.
Well, I just reread that last statement this morning and I think I probably need to get over myself. As much as anything, I think my hesitancy to practice in the federal courts is probably based on the fact that I don't want to go back to being a "baby" lawyer again. I've been working in the Virginia system long enough that I know most all the rules and don't make too many stupid mistakes anymore. I really do not look forward to going into court once again as the guy who's going to do something stupid because I don't know the system well enough. However, I cannot justify not entering federal practice because of that so I suspect sometime in the near future you'll all being reading about my adventures in the Richmond division of the Eastern District.
Author: Ken Lammers on 8/18/2003