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The Defense Rests -- Permanently

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In fact, O.J. was an anomaly. The big trials that have captured the public imagination in the past decade, and vastly enriched their legal stars -- think David Boies -- have mostly involved corporate litigation and class-action lawsuits. Meanwhile, the cachet of criminal lawyers, once admired as the swaggering, cocky, self-absorbed risk takers of the legal profession, has plummeted.

"Between the abuse you take from your clients and the way you're treated in the courts," says defense attorney Richard Rosenberg, "a lot of us feel this business is dead now, that it's over."

"Because of what's happened to our role in the system, nobody takes defense lawyers seriously," says Richman. "We're looked at as money-grubbing, mean-spirited people who are trying to screw the government and get guilty people off."

Except, of course, by those people whose freedom is at stake. "No one speaks well of a criminal-defense attorney," says Brafman, "until it's their ass that's in the hot seat. Then suddenly you're the most important person in America."

Before the mandatory guidelines went into effect, when someone was convicted at trial, there was still plenty of wiggle room when it came to sentencing because the judge would ultimately make the decision.

He could and usually did take all kinds of factors into account when sending someone to prison, from what kind of person they were to how much remorse they displayed to what, if any, unusual circumstances might have motivated them to commit the crime. Now the judge has virtually no discretionary power unless the prosecutor agrees to offer a letter of downward departure that frees him from the guidelines and says the defendant should get a reduced sentence.

"It's a very unfortunate development that young prosecutors with little if any life experience are given enormous power to exercise," says Brafman. "Part of my frustration is that not every criminal case involves a bad person doing something bad. Many times it involves a good person who's done something bad, and those distinctions now get blurred in the system. I spend a substantial amount of my time and effort lobbying the prosecution on charging decisions because this is one of the most important moments in a case."

The great irony here is that while the guidelines were adopted to eliminate disparity in punishment, they often produce exactly the opposite result, because dealmaking puts all the inequity back. If a defendant is willing to skip trial and plead guilty, the likelihood is the prosecution will offer him a reduced sentence. However, since these deals are usually proffered up front, right after arrest and indictment, taking an offer means the defendant sacrifices his right to file motions and even to learn what kind of evidence the prosecution has.

The defense lawyer is operating in the dark and essentially has to take the word of the prosecutor when he says he has the goods on a defendant.

Not surprisingly, U.S. Attorney Alan Vinegrad, who has successfully prosecuted such high-profile defendants as Justin Volpe and Charles Schwarz for the torture of Abner Louima, has a different view. "The sentencing guidelines have significantly changed the system," he acknowledges, sitting in his Brooklyn office with its extraordinary view of lower Manhattan. "But the change has been positive. They've provided more meaningful sentences where it's appropriate and a greater degree of consistency."

Vinegrad, who fits the classic tough-but-fair description, points out that the guidelines are not a "straitjacket," and in half the cases handled by his office, a lighter sentence than the one called for in the guidelines is imposed. And only a little less than a quarter of these reductions are a reward for cooperation.

"The U.S. attorney's office has the top people in the legal profession, who work very hard for much less money than they could make in private practice," he says. "And they are here to do justice. That means putting the bad guys away and not prosecuting the wrong people."

Most citizens, of course, applaud the fact that the criminal-justice system has become tougher, less flexible, and more adept at locking people up for longer periods of time. And what difference does it make if a bunch of self-important, overpaid defense attorneys find their jobs more difficult and less satisfying?

"When you surrender liberty for security, you have neither security nor liberty," says Richman. "I don't mean to get on my high horse here, but we are liberty's last champions. We have to keep the government honest. We have to hold them to a strict standard. We're the rocks upon which the ocean breaks. After us is the deluge."

There is, however, a simpler image to consider. "Once a year a neighbor or a friend or someone I know will come to me and say their son or their nephew or their co-worker got arrested," says Diarmuid White. "And they will invariably say they can't believe how they were treated. It's always somebody who's pro-police and pro-law-and-order -- until it comes home and they see how things actually work. They're always shocked."

None of the lawyers I talked to had any reason to believe things would change anytime soon. "It's actually gotten tougher," says defense attorney Joe Tacopina. "Think about how it is since September 11. I walk into the courtroom and the proceedings begin. I stand and say, 'Joseph Tacopina for the defense.' And across the aisle, the prosecutor stands up and says, 'So-and-so on behalf of the United States of America.' Every person in the jury box is wearing a flag pin. And I think, Man, this is not going to be easy."

Judge Weinstein, however, who takes a somewhat longer view, says penalties, particularly for first-time offenders, have already begun to come down. "All of our institutions are very complex," he says, looking for a reason to be hopeful, "but ultimately pragmatism will prevail."


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