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The War with The Truth


Hat tip to Doug Berman, who brings us this story spelling out in bold relief the real contours of the defense bar's war with the truth. 

For some of us, telling the truth is sufficiently virtuous per se to be non-optional  --  or, to put it more plainly, you have to do it even if it hurts.  But for those who require additional justification, this story makes it unmistakeable.

To sum it up, a fellow who'd been convicted in federal court of child porn appeared before the probation officer preparing the pre-sentence report.  The defendant had a previous conviction for attempting to molest an 11 year-old girl, had been in prison, and had gone through hundreds of hours of "counseling."

In those circumstances, most defendants are going to tell the P.O. that they've learned their lesson and submit some bought-and-paid-for psychiatric report so attesting.  This defendant chose another path.  He told the P.O. that he was a danger to the community, that he couldn't control himself, and that he would in all likelihood attempt to molest another child if given the chance.  The judge, not surprisingly, then gave him an upward departure at sentencing.

The defense bar types commenting on this story were outraged that the defense lawyer had not "better prepared" his client for the P.O. interview.  What he should have been "better prepared" to do was clam up  --  or, if that failed, lie  --  about what any sane legal system would consider the central fact for sentencing purposes, to wit, the likelihood that he'd do it again.

In other words, the defense lawyer's foremost mission here was to make sure the real truth stayed out of sight, and thus knowingly to increase the prospect that another child would be molested.  Is this what we want for "professional ethics?" 

This is Doug's entry:

I believe in, repeat to my kids, and try to live by the credo "Honesty is the best policy."  But this local story of a federal child porn sentencing in Alabama, headlined "Unregistered sex offender's honesty about sexual urges lands him harsher sentence," spotlights that federal defendants can sometimes be forced to pay a steep price for honesty. Here are the notable details:

Had it not been for Michael Wayne Powell's honesty with probation officers, a federal judge here acknowledged, the Chunchula man likely would have gotten a routine prison sentence for having child pornography.  But Powell, 54, told a probation officer working on his presentence report that he had sexual urges that he could not control.

U.S. District Judge Ginny Granade last week sentenced Powell to 20 years in prison, a rare instance of a federal judge imposing punishment greater than the range set forth under advisory sentencing guidelines.  "Because of his admission that he cannot control himself. ... I find in this particular case, a guideline sentence is not appropriate," the judge said.

Assistant U.S. Attorney Adam Overstreet noted that the defendant has a prior conviction for trying to lure an 11-year-old girl for sex.  Powell then failed to register as a sex offender as required by law, said Overstreet, who sought the maximum 40-year sentence. Overstreet also pointed out that Powell underwent 840 days of sex offender counseling while incarcerated in Oklahoma -- apparently to no avail.  Law enforcement authorities found 788 pictures of child pornography on Powell's computer when they searched the Wilmer home where he was living at the time....

Assistant Federal Defender Chris Knight said a 40-year prison term would be "absolutely, substantively unreasonable" for an offense that did not involve contact with a minor.  "It's a run-of-the-mill child pornography case, and I think it calls for a sentence within the guidelines," he said.

According to court records, Powell told a probation officer that he had never touched a child but would if he had the chance.  He called himself a danger to the community, according to the presentence report.  "All I can do is ask for mercy," he said last week. "I know I committed this crime.  And I know how bad it is.  But I had no victim.  The victim is myself.  It's a disease."

My response was:

You can't help but feel sympathy, and indeed respect, for someone who tells the truth knowing that it's going to cost him. Ordinarily, were I the judge, I would seriously consider granting a defendant like this a downward departure, not imposing an upward one. For a defendant to come completely clean, as this one did, is in my experience so rare that it easily qualfies as outside the heartland. That's because the "heartland," for the typical felony defendant, is rampant lying -- or, if he can't get away with that, being as deceitful as he thinks he CAN get away with.

But what was this judge supposed to do?

The court has before it a man who's had an eon of "counseling." He has a prior conviction for attempting to molest an 11 year-old. He tells the judge he's a danger to the community. He cannot control himself or his urges. He's 54 years old, and you know he's not going to change at this point.

What do you do?

If you give him a sentence where he can get back on the outside, he could very well -- indeed, he's all but said he's going to try to -- molest another girl.

Suppose he makes good on it? At his next sentencing, the girl's father confronts you, the judge, and says, "You knew last time that he would do this to my child -- either that or someone else's child. But you arranged it so he could get out. My daughter is a human being and is as much deserving of the law's protection as this man, and you were obliged, as a judge and as a person with any sort of conscience for that matter, to give it to her. You didn't. Why not?"

As I say, I feel for this man. I devoutly wish the legal profession required of its practitioners the degree of honesty he displayed.

Defense lawyers all the time toss around the word "tragedy" when what they're actually talking about is malevolence. (E.g., "What happened to the store clerk was a tragedy," when the more candid words would be, "When my client blew the store clerk's head off to clean out the cash register, it was a damnable crime"). But the story heading this thread actually is a tragedy.

I can tell you that I was completely alone in thinking that what this case needed was what it got, to wit, the truth, followed by the only sentence the truth allowed.

As the Framers saw, it is unacceptable for the state to compel a defendant to incriminate himself.  But our legal culture has gone well beyond that.  It is now to the point that it's considered by some  --  indeed, by quite a few to judge by the reaction to this story  --  to be professional misconduct not to coach your client to deceive the court about the one thing the court needs most to know about.  I guess the defense-oriented types holding this view think that it will be someone else's daughter who gets molested next time.

And then people wonder why the legal profession is held in low esteem.

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