Friday, June 15, 2007

Judges and Lawyers Being Judges and Lawyers

It seems I can't go a day anymore without stumbling upon instances of my passion colliding with my profession. But here we are again, watching baseball get all mixed up with judges and lawyers and all sorts of law-suity things.

Two things happened in the Barry Bonds saga yesterday. First, the hangin' judge in charge of sentencing the guy who leaked the Bonds grand jury testimony to Fainaru-Wada rejected the plea deal reached between the prosecution and the defense.

Second, Bonds's lawyer Michael Rains decided to take his campaign to get Barry off the perjury/obstruction hook to the media, pulling a Joe McCarthy and claiming that he held in his hands some shocking, shocking information that no, kind reporter, you can't have yet, but trust me, if you did, it would knock your friggin' socks off. Rains believes that the info not only exonerates Bonds, but arguably makes him a candidate for sainthood.

Let's unpack this stuff.

I only dabble in criminal law (not altogether successfully if you must know), but I've never had a case in which a judge rejected a plea deal or settlement agreement out of hand like this one. Make no mistake -- a judge is charged with handing down a sentence and he's totally within his rights to reject deals he feels don't mete out justice -- but usually when he does so he (a) has better explanations for doing so than this judge did; and (b) doesn't put the parties before him in impossible positions like this judge did.

Judge White cited a couple of reasons why he felt that leaker Troy Ellerman should serve more than 15 to 24 months, among them being that Ellerman's status as a lawyer means that he should be held to a higher standard and that, more bizarrely, he lied to the news media. While I disagree that lawyers should expect harsher sentences for the same offenses as non-lawyers -- in my mind the "higher standard" will come into play when his license to practice law is permanently revoked in the near future -- I understand the sentiment. What I don't understand is how lying to the media justifies more time in jail. If God had intended for lying to the media to be a crime he wouldn't have created publicists.

A final reason cited by the judge -- that Ellerman's conduct caused the legislature to have to consider changing reporter shield laws seems even more ridiculous and attenuated. How is the lack of a federal shield law -- or Fainaru-Wada's refusal to divulge his source -- Ellerman's fault, and what did it have to do with the actual crime he committed? If I knock over a convenience store tomorrow, should I be given a harsher sentence because some digbat Congressman holds a press conference next week about the dire need to outlaw ski masks?

More troubling to me is the judge's refusal to suggest what he feels is a proper sentence. Based on the deal reached, it is obvious that neither the prosecution nor the defense want to try this case, and they are now going to embark on a few weeks of negotiations in an effort to strike a deal on which the judge will sign off. Unfortunately they're flying blind now, and may find themselves in exactly the same position at the next hearing. With absolutely no guidance, how can Ellerman decide whether a trial is worth the gamble? How can the prosecutor expect any offer he makes to be taken seriously by Ellerman's legal team now that they know he has no real settlement authority? I predict a lot of wasted money in a case in which none of the facts are truly disputed.

The Michael Rains "bombshell" story is fun in its own way. Here's a loose translation of Rains's comments: "That idiot prosecutor who is going to decide whether my client is indicted, arrested, booked, and tried is ignoring the evidence, pursuing my client in bad faith, and won't answer my letters. I'm giving him one last chance, and if he doesn't take it, I'm going to the media again."

While there are attorneys who deal with this kind of stuff way more than I do, I do have some experience in cases that garner media attention. That experience tells me that the best way to get your client indicted is to taunt the prosecutor, which is really what Rains is doing by airing his correspondence with him in public. This is especially true now that, thanks to Mike Nifong and Alberto Gonzales, people are more likely to question a prosecutors' integrity.

Rains would do well to remember that, in the context of a grand jury investigation, prosecutors have Keyser Söze-like power. If he wants to try to shoot the devil in the back, he had better not miss.