Federal Criminal Defense Lawyers Keep Working During the Pandemic: A Few Lessons

It has been the usual gorgeous Spring weather here in Atlanta, where I now do most of my work from home while representing clients facing federal criminal prosecutions and investigations.  Although I rarely venture into the office now, my firm has been able to keep up with all of our cases and maintain the work of helping our clients who face cases in federal courts throughout the country.  I have also learned (and remembered) a few lessons while in this new situation.

One lesson came from a case where I  represented a client who pled guilty to a federal economic crime.  We had one of the last “in-person” sentencing hearings in federal court just before all the courts closed down.   We convinced the Judge to impose a sentence well below what the prosecutor asked for, and well beneath the range suggested by my sometime nemesis, the Federal Sentencing Guidelines. The case reminded me that a better-than-expected result in a federal case where the client pleads guilty depends on many factors, but the lawyer needs to focus on two areas to achieve this.  First, the attorney needs to do whatever he or she can to maneuver the dreaded Guidelines into the best position possible under the circumstances.  Second, the lawyer then needs to get especially creative when trying to convince the Judge to impose a sentence below those same Guidelines.  In this particular case I had to juggle a series of areas to come up with a combination of reasons why the Judge should do what I was asking of her.  So, that recent lesson reminded me:  the lawyer’s work is far from over when the client decides to plead guilty, for that is often the point when the attorney can make the greatest impact and salvage the best result under the circumstances.

Another lesson I learned is that a “virtual meeting” is merely a substitute for an in-person consultation.  I have a new matter where my client and I have had many calls, but have not met fact-to-face because of the shutdown.  After many discussions, I came to realize that I had misunderstood a crucial detail.  It likely would have been cleared up much earlier if we would have been able to meet in person.  I am glad we figured out that particular miscommunication, but the lesson is obvious: it will be much easier to do my job properly after I can again meet clients in person.

Lesson Number Three: the Court and prison systems are slow, and the pandemic makes things move even closer to the pace of a glacier.  I have some elderly clients who, quite frankly, should not be in prison in the first place, but even so, they should be released so they do not have to be cooped up with other prisoners who are infected with the virus.  The US Attorney General “promised” to release such prisoners, but nothing has happened, even through I’ve written many letters and made numerous phone calls trying to get my clients out of harm’s way and back to their homes where they can be supervised on home confinement. The courts likewise are mostly unsympathetic, rejecting my motions on technical grounds and deferring the vast majority of release cases back to the prison officials, who are letting hardly any prisoners out.  It is very frustrating to realize how slow and sclerotic our systems can be in an emergency.

Now, back to work trying to help clients facing these difficult federal criminal cases.