Seventh Circuit Week in Review: A Sentencing Remand Based on Mental Disability

The Seventh Circuit had only one new opinion in a criminal case last week.  United States v. Williams (No. 07-1573) arose from a series of bank robberies.  Four codefendants were convicted and sentenced to lengthy terms of imprisonment, ranging from 221 months to life.  All four defendants appealed on a variety of different issues, although only one, Clinton Williams, obtained any relief.  Williams was sentenced to 552 months’ imprisonment, notwithstanding evidence that he suffered from significant mental impairments and had become involved in the robberies only as a result of manipulation by his brother.  In light of this mitigating evidence, which was not seriously contested by the government, Williams’ lawyer argued for a sentence at the low end of the 519- to 552-month guidelines range.  However, the sentencing judge did not squarely address this evidence.  Instead, the judge selected a sentence at the top of the range in light of a report by an expert who evaluated Williams and found that he was exaggerating his disability.

The Seventh Circuit (per Judge Williams) vacated and remanded for resentencing.  As the court sensibly observed, there is no logical inconsistency between the evidence that Williams suffered from a mental disability and the observation that he was exaggerating the disability.  Indeed, the very expert who made the obervation estimated Williams’ IQ at 72, which is considered borderline mentally retarded.  The sentencing judge was required to address this and the other evidence of mental disability, as well as the related claim that Williams’ diminished capacity made him susceptible to manipulation by his brother.

Williams thus joins an interesting line of recent Seventh Circuit cases that require sentencing judges to explain why they reject defendants’ arguments for leniency.  I have a forthcoming article about these cases in the Florida State Law Review.  As I explain in the article, there are good procedural justice reasons to favor the Seventh Circuit approach.  It is unfortunate that other circuits have not adopted as robust an explanation requirement.

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Client Fraud and the Lawyer

 

As the disaster in the financial markets continues to unfold, greed and avarice – the usual suspects – are being overshadowed by pervasive fraud as a prime mover.  We have, of course, the infamous Bernie Madoff and now the “mini-Madoffs” upon whom we can heap large helpings of blame, but deceit, misrepresentations, and fraud seemingly resonate throughout the markets, as illustrated by the subprime scandal, the mortgage mess, and the flood of worthless consumer debt.  And what was the role of lawyers in all this?  Financial transactions of this sort inevitably involve lawyers at some stage.  Investigations and lawsuits may soon give us a clearer picture of the role lawyers may have played in exacerbating the nightmare, but the question for today is whether lawyers could have, or should have, acted to prevent any of this.  And my focus is not Sarbanes-Oxley or securities regulations, but on the fundamentals of lawyers’ professional responsibility.

Lawyers are not permitted to “assist” or “further” crimes or frauds committed by their clients.  To do so – provided anyone finds out – eviscerates the venerable lawyer-client privilege and exposes both lawyer and client to civil and criminal remedies. This is comfortably familiar and uncontroversial.  But what of the lawyer who is aware of a client’s fraud but who arguably has done nothing to assist or further it?  Assume further that the fraud is on-going and not a past act.  What is the lawyer’s duty or professional responsibility, especially considering that lawyers are enjoined not to disclose client confidences or privileged communications without client consent (and the reality is that few clients will approve of their lawyer’s whistle-blowing)?

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Faculty Workshop on Criminal Procedure in Russia

Yesterday, our colleague Professor Olga Semukhina of the Marquette Department of Social and Cultural Sciences gave a presentation entitled Criminal Procedure in Modern Russia: The Path of Reforms as part of our faculty workshop series. She outlined the structure of the Russian Criminal Procedure Code (adopted in 2002), explained how the criminal process works, and offered her sense of the system’s shortcomings. Not surprisingly, the system looks very different from that in the United States. The Russian system has Continental roots, and consistent with that is considerably less adversarial than our own. Indeed, defense lawyers play an almost entirely reactive role. The defense has no ability to gather evidence, and until trial (which is the only adversarial component of the system) is limited to lodging objections to the work of the criminal investigator (a lawyer who is in theory an independent investigator, but whose physical location amongst the police and prosecutors tends to generate an affinity for the state). Plea bargaining is non-existent. Every case goes to trial, and 99 percent of those result in convictions.

For me, the presentation underscored the value of the comparative perspective. It is easy to conflate familiarity with necessity, and exposure to the workings of another system has the tendency to dislodge some of our assumptions about the way the world works. Another example: in Russia, a crime victim’s claim for restitution is part of the same case as the criminal prosecution, and the victim has a right to appeal the verdict in the criminal portion of the appeal. It’s an intriguing process to someone, like me, who is interested in the boundaries between the civil and criminal processes.

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