Defense Lawyers Can Benefit By Adding Prison Consultants to the Defense Team.

Yesterday your client had a life. That may change as a result of today’s indictment.
Yesterday your client was a businessman, an owner. He was a husband and a father. Today he faces the possibility of losing everything, his family, his freedom, his future, his dreams, and his reputation. His life may be changed forever.
Yesterday your client told people what to do. His demands were met. Starting today your client is in the grips of the government and he will be told what to do.
Yesterday your client was known for his power, his prestige, and his philanthropy. As of today his name will be preceded by the title “the defendant.”

Your client is going to be making certain critical decisions that will have an overwhelming impact on his future. He will have to make these decisions at a time when he will be ill equipped to make them. He will be suffering from massive stress and his family will be thrown into turmoil and fear. His normal resources may be cut off and he is going to have to put his faith in others. Even though he doesn’t want to trust anyone, he is going to have to trust you.

He can trust you. You are the criminal defense expert. This is your business and this is what you do. You are the lawyer. You know the law. All of your knowledge, training, experience, and resources are devoted to obtaining a successful outcome for your client. So what’s the problem?
The problem can be summarized in a simple number, a statistic – 93%. Approximately 93% of all people indicted by the US Attorney’s Office are convicted. And most of those spend time in federal prison.

Your numbers are better than that. That is one of the reasons why you have the reputation and stature that you do. Despite these well known and overwhelming odds, you are still able to win. That is all your client wants. Boy does he want you to win.

So your job, your focus, is to navigate the time period between your client’s indictment and when he is sentenced. Even in those rare instances where there is a trial, you’re essentially done when he is sentenced. Great. On to the next case.

But not so fast. A few things have happened to your client in the meantime. Chances are he is now a felon. Chances are he is facing a prison sentence. Chances are he is scared to death. And chances are things happened between the indictment and sentencing that will affect how much of his sentence he has to serve, where he has to go, and what he will do when he gets there.

Your white-collar client expects, as he always has, to have expert advice available to him to answer the questions that are consuming him and his family:
“Where am I going to go?” We don’t know. The judge made a recommendation but we don’t think the BOP is required to follow it. “What?!”
“What is it like in prison?” We don’t know because we’ve never been. “What!?”
“What can I bring?” Check the BOP web site. “I did and it didn’t help.”
“What kind of people are there?” “What will I do all day?” “Is it violent?” “Is there any way to get out early?” “Can I bring my medicine?” “Can I see my wife?” “Can I see my doctor?” We don’t know. Check the internet. Maybe there are some books.

I was indicted. I was represented by fantastic lawyers and they did an amazing job. And, as most are, I was also convicted. Fortunately my lawyers really shined when it came to sentencing. But, and this is a big “but” for someone in my position, my lawyers could only help up to a point. I had all of the questions your clients ask, and so many others. But no matter where I looked I couldn’t get answers. Consequently, I walked into federal prison apprehensive and anxious.

Truthfully, even if your client and his family are relentless with their questions, you can’t be expected to know everything. And unless, heaven forbid, you actually go through this experience yourself, you can’t really know how to answer certain types of questions. You can’t be expected to provide answers for things you don’t know, but your client doesn’t know who else to ask. And your client doesn’t even know what to ask.

However, you didn’t get to where you are in your profession by being satisfied with what you don’t know. If you don’t know something, you want to at least know where to go for answers. You go to the experts for the advice you need. But what are you supposed to do here?
Let me tell you from my experience that your client will want to talk with someone who has been there, someone like him, a white collar professional who had been put in an untenable situation with no knowledge of how to navigate the ordeal. And I know that he should talk to that person early enough in the process to make a difference.

For example, the first serious thing that will happen to your client happens early, and it is a major event. It won’t seem like much. It didn’t seem like much to me. And given the casual way this event was handled by my lawyers and everyone else, I had no clue of the significance of this brief meeting. I’m talking about the meeting with the probation officer that leads to the PSR/PSI. You may know how important that document is during the sentencing process. I now know, because I’ve been through the system, that the report is very important for other reasons too. The PSI report turns out to be the first thing read by each member of the BOP staff each time they come in contact with a new inmate. They rely on the content of that report, to one extent or another, for every decision they make while someone is in prison. The content of that report is used to make decisions as wide ranging as bunk assignments, medical care, and qualification for sentence reduction programs. Yes, having the right advice at the commencement of the sentencing process can help your client ease his stay and, most importantly, help him to reduce his time in prison. Not having that advice early enough is like leaving the handcuffs on.

Dealing with the BOP is not always intuitive. In one case, a former lawyer who was represented by a prominent attorney appeared at a sentencing hearing with a negotiated prison term. During the hearing, this highly respected criminal defense lawyer successfully argued for a three month reduction in the pre-agreed length of the sentence. Although this sounds like a wonderful result, a result that would confirm the value of that defense lawyer, it was not. Neither the client, who had been a lawyer, nor his criminal defense attorney, realized their mistake. As a result of the three-month reduction in the sentence, the client was no longer eligible for a BOP program that would have reduced the defendant’s sentence by 15 more months! Yes, due to the rules governing programs available to prisoners, the 3-month reduction in the sentence meant the defendant was no longer eligible for a much larger reduction in his sentence.

Are you responsible to know all about the mechanics of BOP operations and prison life? The answer is no. These are not legal questions and this is not legal advice. But how much of your time has been consumed away from the “legal” side of your cases over the years by these same questions? If an expert had been available to your client, someone who could answer these questions, then you could have spent more of your time on his case. After all, you have someone prepare trial graphics, you use jury consultants, economists, and other experts. This is another way to provide your client with better service and free up your time to do what you do best.

You know that there is critical information that can provide valuable advantages to your client. Given the likelihood that someone who is indicted will be incarcerated, your client should be referred to an expert on these matters from the very beginning of the case. Once in the system, everything you know about getting what you want or need, and how to get it will have changed. Sometimes doing the right thing can be wrong. This is a bureaucratic system and the people and their tactics must be understood by anyone who wants to safely navigate through the prison experience.

White collar defendants are best served by an expert who was also a white collar defendant. I am one of these experts. I am a former attorney who was indicted and became a federal prisoner. I vividly recall all of the questions I had. I vividly recall my own concerns and fears and those of my family. But most importantly, I was the clerk at Lompoc, where I was responsible for resolving the day-to-day problems of 600 prisoners. It was my job to introduce all of these men to prison and to act as their unofficial ombudsman with the staff and administration. I use all of those experiences when I consult with those who are indicted and who are going through this process. I know that my time spent with these people and their families is going to make their experience more bearable – the time before prison, the transition to prison, and their stay as a “guest of the government.”

I pay particular attention to those things that can make sentences as bearable and as brief as possible. I also know that, because clients are not distracting their lawyers with questions that I can answer, their entire legal team functions more smoothly.