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The Defense Rests -- Permanently

Innovations like mandatory sentencing and the plea bargaining it engenders are stacking the criminal-justice system against defendants while beginning to make superstar defense lawyers obsolete. No one feels sorry for the lawyers, of course. But is something valuable -- like, say, the presumption of innocence -- in danger of being lost?

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Test case: Defense victory's like the one in the Sean "Puffy" Combs high-profile shooting case are rare. Pictured, left to right: Attorney Ben Brafman, Puffy, attorney Johnny Cochran.  

It was the kind of moment defense attorneys live for. At a little past six on a Friday evening last March, Ben Brafman stood next to his high-profile (and highly controversial) client, Sean "Puffy" Combs, in a seventh-floor Manhattan courtroom and braced himself for the verdict. The intense pressure of a two-month trial that featured wall-to-wall media coverage, 60 prosecution witnesses, and the prospect of a fifteen-year sentence had clearly gotten to him. Brafman had barely slept in the three days the jury had been deliberating.

When jury forewoman Brenda Kronenberg spoke the words not guilty on each of the five charges stemming from a shooting in a Times Square club, Brafman reflexively shouted "Yes!" hugged his client, and buried his tear-streaked face in his hands. Later, he would say he was so overwhelmed he thought he was going to collapse.

As Brafman took his victory lap around the talk-show circuit, the whole episode seemed to reinforce the notion that the best legal-defense talent regularly trumps public opinion -- hadn't the press virtually convicted Puffy, even as his glamorous girlfriend, Jennifer Lopez, deserted him? -- not to mention the government's prosecutorial strategies. But even as Brafman was soaking up the accolades for his courtroom performance, he knew something most of the public didn't: Not only are come-from-behind defense victories becoming more and more difficult to achieve, but simply going to trial has become almost prohibitively risky. One of the reasons Brafman was so overcome with emotion when the Combs acquittal came down was that it was so rare -- so rare that many of the best criminal lawyers in town are ready to quit.

According to Brafman and dozens of other defense attorneys I talked to, the criminal-justice system has undergone a profound transformation. In fact, Brafman's big win was an anomaly, and the era of the superstar defense attorney, part gladiator and part performance artist, may be coming to an end.

Criminal-defense attorneys maintain that, with the exception of the most minor offenses or the most serious -- and when the accused is a celebrity -- actual trials are almost rare now. Changes in the legal system have given prosecutors the power to exact extraordinary penalties from defendants who choose to go to trial and lose. The deck is so stacked against defendants who plead innocent, they say, that the average defendant doesn't have the luxury of taking his case before a jury. Why fight, when the chances of victory are small and the penalty for losing is huge? Everyone is looking for a deal.

Nowadays, defense attorneys argue, justice is bartered in the prosecutor's office, not fought for in a courtroom. "All the skills I had developed as a litigator can no longer be put to use as a criminal attorney," says Joel Rudin, who at 48 has been practicing for nearly 25 years. "The primary skill needed for doing criminal work is as a negotiator to deal with the prosecutors. But since you're not on even ground with them, you're not so much negotiating as pleading. The system has totally perverted the values a lot of us grew up with.

"Practicing criminal law," Rudin continues, "has become draining, dispiriting, and completely unsatisfying."

"The prosecution wins probably 98 percent of the time," says defense lawyer Richard Levitt, who grew up the child of two lawyers.

Hugh H. Mo, a former deputy police commissioner and Manhattan prosecutor who's now a defense attorney, puts it this way: "Nowadays, if you get caught up in the criminal-justice system, they're gonna take a piece of your ass -- one way or another."Over the past two decades, the justice system has been armed with enormous weapons, weapons designed to ensure not only the arrest of criminals but their speedy conviction and long-term incarceration as well. No budgetary or legislative resources have been spared. There are now hundreds of federal crimes (think securities fraud, the Internet, money laundering, child pornography, and so on), whereas once upon a time federal offenses were pretty much limited to kidnapping, bank robbery, mail fraud, and treason. New York's penal code has been expanded from about 200 pages to more than 600. When Hugh Mo was an assistant district attorney in Robert Morgenthau's office in the early eighties, for example, there was one criminal investigator and about 150 prosecutors. Today the office has 80 investigators and nearly 600 prosecutors.

And prosecutors, meanwhile, have been given an arsenal that includes measures like mandatory minimum sentences, the Rockefeller drug laws, three-strikes statutes, repeat-felony-offender rules, and the federal sentencing guidelines. While no rational person would like to see a return to the permissiveness and lack of accountability that used to be the order of the day, the overwhelming power of the criminal-justice system has raised a compelling question: Has the presumption of innocence and the constitutional guarantee of a trial by a jury of one's peers been compromised by measures designed to speed the accused through a system with fewer opportunities to escape?

"Everybody knows now that if you go to trial and get convicted, you're going to get massacred, you're going to get the maximum sentence allowed," says Murray Richman, the dean of defense attorneys in the Bronx courts. "Even innocent people often aren't willing to risk fifteen or twenty years or more in jail by going to trial. Not when they can get it down to one to four if they plead."

The most desirable currency (and the real wild card) in this criminal-justice flea market is cooperation. The best deals are available when a defendant is willing and able to turn someone else in or provide useful information about other crimes. "What we really have are two systems now," says Rudin. "One for cooperators and one for noncooperators."

Rudin, a pleasant-looking man with bushy gray hair and an earnest, concerned manner, tells the story of a guy who was charged with playing a key role in bringing several thousand pounds of cocaine into the U.S. and trucking it across the country. He was facing 25 years to life, according to the guidelines, for his crimes. Rather than go to trial, he gave information to the government, and in return he got a term of six and a half years.

Another defendant before the same judge was a man in his fifties who was charged with buying one kilo of cocaine for $3,000. As it turned out, what he actually got was not cocaine but cocaine base -- crack. The system treats one kilo of crack the same as 100 kilos of coke, so the guy was facing fifteen to twenty years. But his predicament was made even worse by two factors. He wasn't in the drug business, so he had no one to inform on and no information to peddle for a deal. And he wanted to fight to prove what he claimed was his innocence.

So he rolled the dice and went to trial. He lost and was sentenced to fifteen and a half years. The prosecutor had offered him a plea up front, for which he would have gotten three to five years. And if he'd had information to trade -- or been willing to work on the street as a government informant -- he could've gotten the whole thing reduced to just one year. At sentencing, the judge told the prosecutor she'd like to give him a lesser sentence than what the guidelines mandated. The prosecutor actually moved for a stiffer sentence and said he'd appeal if the judge reduced it.

"The point here," says Rudin, "is that the guidelines haven't resulted in uniform sentencing, which is the reason they were adopted, and if someone has the temerity to actually exercise their right to trial, the government will make them pay for it if they lose."

The criminal-justice system began to change rapidly in the mid-eighties, when the federal sentencing guidelines were adopted. An unprecedented crime wave had been raging across the country more or less since the late sixties, and elected officials -- this was the Reagan era -- decided the time had come to do something about it.

The idea was simple: If someone was convicted of a federal crime -- say, bank robbery -- he would serve a specific prison sentence, regardless of how nice he seemed to be, who the judge was, or how good a lawyer he hired. The intent was to ensure uniformity -- fairness -- in the imposition of sentences.

The state courts also ratcheted up their sentencing rules, adopting statutes that called for mandatory minimums. The draconian paradigm was established by the the Rockefeller drug laws adopted in 1973. "Back in the early seventies," says Jim Kindler, chief assistant D.A. in the Manhattan D.A.'s office, "there were only three crimes that had mandatory sentences: murder, kidnapping, and high-level narcotics. For all other crimes, the judges had significant leeway. That's all changed."


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