February 24, 2020

Judicial Crossroads: Making Difficult Decisions From The Bench

Mitchell A. Carlson

Out of all the various experiences I have had as a law student interning for a federal judge thus far, none have been quite as eye-opening and as impactful as the day I got to witness that judge conduct a sentencing hearing in one of her criminal cases.  All law students know that sometimes the law results in tough decisions having to be made, and sometimes those decisions have profound impacts on individual’s lives.  However, knowing this to be true in the abstract does not prepare one to witness a convicted individual quite literally begging for the judge’s mercy, as I recently did.  The whole experience gave me a renewed understanding of the importance of the work federal judges do, and an appreciation for their ability to make difficult decisions on a regular basis.

The individual who was facing sentencing was a roughly 50-year-old white male.  He had plead guilty to multiple counts of wire fraud, which stemmed from him submitting false invoices to the city for work that was never actually carried out as part of the cleanup efforts following Hurricane Sandy.  There were a number of “bad facts” weighing in favor of incarceration, and the sentencing guidelines recommended 1 to 5 years in prison and a fine.   However, there was also a very compelling human story in favor of a sentence less than incarceration.  Taken together, these contradicting narratives put the judge in a challenging position.

The bad facts seemed to pile one on top of another in this case.  For starters, the fact that the defendant’s fraud involved taking advantage of public funds that were earmarked for disaster relief made his conduct especially repugnant, and the prosecution spoke passionately about this at the hearing.  Second, the defendant had a long history of fraudulent behavior, including writing bad checks, forgery convictions, and convictions for larceny.  To make matters worse, in almost all of these former cases, the defendant was given probation, then broke the terms of that probation and ended up serving a jail or prison sentence.  As if all of this wasn’t enough to put the defendant in a hole, he also failed a number of drug tests leading up to the sentencing hearing and failed to appear for a number of other tests.

Despite all of these bad facts being present, the defendant’s lawyer advocated strongly for him and made a compelling case that appealed to human emotion.  First, he described the changes that the defendant had made in his life in the four years between the commission of the crimes and the sentencing hearing.  He noted some personal transformations that attempted to show the defendant had cleaned up his act, but then he dove into the family changes that were at the heart of his argument. 

The lawyer explained how 12 months before this sentencing hearing, the defendant gained custody of his 12-year-old daughter, who had recently been removed from the mother’s care because she was assaulted by one of the mother’s boyfriends.  The lawyer chronicled the mental and physical struggles of the defendant’s daughter, and then went on to explain the many improvements the daughter had made since coming to live with her father, the defendant.  Another family circumstance that had changed since the commission of the crimes was that the defendant’s father had died, which meant the defendant was now the sole caretaker of his mother, a wheelchair bound woman who was present in the courtroom that day. 

Then the defendant got up to speak and make his own case.  Through sobs and tears, he explained that he was sorry and that the only thing he was concerned about was being able to provide for his daughter and mother.  With that in mind, he begged for the judge’s mercy and a sentence that did not include incarceration.  As I was sitting there in the courtroom, this was incredibly hard to watch, let alone to watch without reacting to!  It made me glad that I was not in the judge’s shoes, because neither option really seemed that appealing.  On one hand, the judge could have given a lenient sentence, which seemed unfair to the taxpayers who were scammed during a time of crisis; whereas on the other hand, the judge could have given a harsh sentence, but that seemed unfair because the daughter and mother who depended on the defendant would have been punished collaterally.

The judge ended up giving him three years of house arrest / supervised release, with no period of incarceration.  She said that the “only reason” that she was giving him a break was because of his daughter’s recent improvements and her desire to not hinder that positive development.  The judge noted the defendant’s past failures to comply with similar supervised release arrangements and warned him that, “I need you to understand me as clear as possible, that if you mess this up, I will send you to jail, do you understand?”  

I liked the judge’s decision, as I thought it was very thoughtful toward the reality of the tough situation.  The entire process, from observing in the courtroom to discussing afterwards in chambers, was very revealing to me as far as how judges reach decisions when it is a tough call.  At the end of the day, judges are human too.  I can only imagine that the judge having a daughter of her own may have weighed in favor of her decision to be lenient in this difficult situation.  In a number of my law school classes, I have heard professors talk about the power of presenting your case as a compelling story, and I felt like that is exactly what the defense lawyer successfully did here.  This experience gave me an added appreciation for judges’ willingness to make a call one way or another and deal with whatever results from that decision. 

Mitchell A. Carlson