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The sweeping $2 trillion economic stimulus package signed into law by President Donald Trump on March 27 will undoubtedly help millions of people in need, but it is also expected to attract its share of shady operators looking to make a fast buck.

. . .

The stimulus provides for oversight, but “there is no way that the inspector general or a board governing oversight of $500 billion will be able to monitor and detect every fraudulent representation made in furtherance of government payment,” said Reuben A. Guttman of Guttman, Buschner & Brooks PLLC, a firm that represents whistleblowers.

Democrats pushed for and secured independent oversight of $500 billion for distressed businesses, Bloomberg News reported.

False Claims Act whistleblowers will be needed to help the inspector general do the job, Guttman said.

“The government’s first instinct in an emergency is to put money out without putting guidelines into place to make sure it will be well spent,” he said. “Products like ventilators and masks will have integrity problems because of this rush.”

. . .

Source: https://news.bloomberglaw.com/federal-contracting/sweeping-stimulus-law-golden-opportunity-for-scam-artists

Federal procurement is not a subject that makes for compelling television, but procurement scandals can be good drama, which is why on Nov. 30, 1980, the CBS newsmagazine 60 Minutes aired a story that suggested private contractors were running the Energy Department. Outside consultants, intoned correspondent Morley Safer, seemed to do everything for Energy. They assembled the department budget. They wrote congressional testimony for Energy officials. They were the “bureaucrats’ bureaucrats,” Safer said.

On the 1980 videotape, you see a parade of lawmakers press the case against Energy, including Sen. David Pryor, D-Ark. Then you meet Dan Guttman, a fast-talking investigator who works for Pryor. Guttman says Energy’s use of consultants portends a great shift in how government works. “The public is not aware who is making decisions in this country,” he tells Safer. “We find agencies delegating large chunks of [themselves] to one or more firms over a number of years and, in effect, saying, ‘Run this portion of the agency.’ “

The camera clearly likes Guttman. He tells jokes, he gestures wildly with his arms, he gets more airtime than his boss. At one point, Safer even turns the microphone over to Guttman and lets him interrogate John Hewitt, Energy’s chief financial officer. Guttman also gets the last word: “You name what government does and we have found contractors doing it,” he says. “You get up close, it looks like a conspiracy, but really it’s chaos.”

Guttman has spent his career in the middle of this chaos. In the early 1970s, fresh out of law school, he co-wrote The Shadow Government (Random House, 1976), an exposé of the federal consulting industry. Since 1980, he has been part of nearly every congressional effort to scrutinize the government’s use of contractors. Along the way, he became convinced that the government’s increasing reliance on private companies raises basic, even constitutional, questions of accountability. He believes that most agencies can no longer effectively oversee their contractors and that existing oversight tools-such as setting performance standards in contracts-often don’t work.

“There are two sets of tools that we have for [contractor] accountability,” Guttman says. “One is legal-the presumption that only governmental officials can do certain work. That tool isn’t working. And then we have management tools, such as performance contracting. My observation is that those tools aren’t working either. Neither one of them is working in prime time.”

Needless to say, not everyone agrees. “Look, this is not some kind of Wild West show where everyone is just running amok,” says Stan Soloway, president of the Professional Services Council, an Arlington, Va.-based association that represents contractors. “I don’t believe there are very many examples of government procurement that raise the issues Guttman worries about,” says Steven Kelman, a professor at Harvard University’s Kennedy School of Government and former federal procurement administrator.

Although Guttman is not opposed to contracting in principle, he is associated with efforts to curb the use of contractors. Pryor cut agency budgets for consultants and waged an unsuccessful campaign to make federal contractors register all of their clients with Congress, just as lobbyists must do. Rick Goodman, a former Pryor staffer who worked with Guttman, remembers their icy relations with industry during a 1989 investigation. “The consulting industry thought we were a bunch of bomb throwers,” he says.

Professionally, Guttman defies easy description. A practicing attorney, he still represents whistleblowers and teaches graduate level courses in government at Johns Hopkins University. He is part lawyer, part historian, part gumshoe investigator. “We don’t have a discipline in law that [covers] what Dan does,” says Sallyanne Payton, a professor at the University of Michigan Law School, who met Guttman through the National Academy of Public Administration. “I think he’s more of an activist,” offers Jody Freeman, a professor at the UCLA Law School. In an e-mail, Guttman notes that many of his friends have started think tanks, and playfully wonders whether his interests could fit that mold: “How does the ‘Center for the Study of Public Functions by Nongovernmental Entities’ grab you?”

Guttman the person leaves a clear impression. With his unkempt hair and dark, darting eyes, he radiates intellectual intensity. When he wears his raincoat, he resembles television’s rumpled detective, Columbo. He is an incessant talker, the master of the marathon conversation. Spend some time with him and you realize he treats life as if it were a never-ending college seminar; every topic holds interest, every issue, no matter how obscure, must be wrestled to the ground. “Obscure and arcane is where Dan lives,” says Nancy Bekavec, a law school friend who is now president of Scripps College in Claremont, Calif. “If you gave him the choice of going to see a Mongolian rap artist, or Britney Spears, he would assume all the cool people were going to see the Mongolian rap artist.”

Guttman devours information. As staff director for the Presidential Commission on Human Radiation Experiments in the mid-1990s, he would literally wade into archival agency documents. “Every day we got a shipment of documents, and Dan would not wait for them to be processed. He would go in and start opening the cases and rifling through them,” remembers Gregg Herken, a Cold War historian who served on the commission.

Guttman’s investigations have made him a walking encyclopedia of government arcana, which he generously shares. “He helped me realize that the Library of Congress was basically run by contractors,” says 60 Minutes correspondent Andy Rooney. “It was a shocking revelation to me.” Rooney hired Guttman to do research for Mr. Rooney Goes to Washington, an award-winning CBS program broadcast in 1975.

Guttman seems genuinely indifferent to material things. In 1997, he left a job as a commissioner of the Occupational Safety and Health Review Commission partly because he felt guilty making a six-figure salary for a job that required little work. “It was an easy job, a good solid salary, and Dan was miserable,” says a friend.

Guttman has never held a management position in an agency, nor had any official authority over procurement rules. Yet he has found a way to influence contracting policy-or at least to be a thorn in the side of those making it-through his investigations and lawsuits. His work has helped set the parameters of the current debate over outsourcing federal operations. For example, the idea that certain jobs are “inherently governmental,” and must be performed by civil servants, dates to 1960s-era policies. But it only got legs-and a place in the 1998 Federal Activities Inventory Reform (FAIR) Act-after a 1989 investigation of federal contracting in which Pryor and Guttman pressed the General Accounting Office to define the limits of inherently governmental work: Should contractors be allowed to write official testimony? Or interpret regulations?

Now, in a new era, with no big lawsuits or congressional investigations on the horizon, Guttman is trying to focus attention on the government’s haphazard approach to outsourcing, which in his view raises constitutional questions. The framers sought to protect citizens from an overzealous government by enacting a Bill of Rights; the same concern led later generations to enact laws such as the 1887 Hatch Act and the 1974 Freedom of Information Act, which seek to control the behavior of federal officials. “The Constitution and all these statutes are directed at protecting us against the abuse of power by government actors,” Guttman says. “Well, what happens when private contractors, who aren’t covered by these laws, do much of the government’s work?”

Guttman’s arguments confound some procurement experts. Larry Wright, a senior vice president at consulting firm Booz Allen Hamilton, doesn’t see the constitutional link. “I’ve never heard these oversight issues characterized as constitutional issues before,” he says. “It’s the legal view,” says Chip Mather, a senior vice president with Acquisition Solutions Inc., a procurement firm based in Chantilly, Va.

Guttman carries a staggering amount of information in his head, and it can be overwhelming when unleashed on the uninitiated. His most recent congressional testimony included 49 endnotes in 15 pages. “Part of the challenge for Dan is for the world to know what he knows,” says Charles Lewis, director of the Center for Public Integrity, a Washington-based network of investigative journalists.

Guttman approaches contracting from the fields of history and law; his arguments hinge on a certain understanding of how contracting changed with the Cold War. They also grow out of his experience doing something very few other people have ever done-studying actual contracts.

CRACKING THE CODE

In the summer of 1971, Guttman walked into a contracts office at the old Health, Education and Welfare Department. He was searching for a report. “Help yourself,” said the man at the desk, and, over the next few weeks, he did. Poring over contract files, he discovered that most HEW contracts went to a few well-connected firms, often without competition. He read scathing letters from Lois Ellin Datta, head of evaluation for the Head Start program, to her contractor, the Stanford Research Institute. In its final report, Stanford had plagiarized papers she had published. “Can’t your staff think for itself?” she demanded. He found few contracts with performance standards. For example, a contract with RAND, a research organization, for an analysis of the distribution of doctors in rural areas simply declared, “As to the essential features of the performance, the best that can be bargained for is the contractor’s best effort.”

At the time, Guttman was one of “Nader’s Raiders,” the young progressives who churned out exposés of government and corporate America for consumer advocate Ralph Nader. This didn’t stop him from making friends with HEW staff. He joined them for coffee breaks. He answered the phone when they went to lunch. By the time someone questioned his presence in the office, he had already read through all the files. Guttman would have better moments as an investigator, but none that so vividly showed how contracting worked behind the scenes.

“It was like cracking the code,” he remembers. “When you get to the inside documents, you find too many cases where the light is on but nobody is home.”

Guttman was fascinated by the role of think tanks in setting public policy, not an unusual concern in the circles he traveled in. He grew up in White Plains, N.Y., the eldest of three brothers. A mediocre student in high school, he went to the University of Rochester, where he was a big fish in a small pond. Guttman was student body president, editor of the student newspaper, and an intramural wrestling champion. In 1968, his senior year, he helped lead student protests against Dow Chemical, the manufacturer of napalm, when the company came to recruit on campus.

In 1969, Guttman enrolled at Yale Law School-where it seemed that almost everyone was studying something besides law. Guttman’s friend Robert Peck studied architectural history; one student spent most of his time writing poetry. Guttman was no exception, quickly immersing himself in research on federal consultants.

Guttman loved to tell stories about the scandals he found. Peck remembers Guttman stopping him in the hall of their dorm. “‘Listen to this, isn’t it outrageous?'” he would say. But Peck and others wondered what the stories really proved. “I said, ‘Dan, it’s a lot of anecdotes, but what does it add up to?’ ” says Peck, a former commissioner of the General Services Administration’s Public Buildings Service, who is now president of the Greater Washington Board of Trade.

While still in law school, Guttman and Barry Willner, a fellow Nader researcher, decided to write a book about the consulting industry that had grown up around agencies, and to discuss the policy issues it raised. The result was The Shadow Government. “Barry and I could have easily shown that procurement rules weren’t followed,” says Guttman. “But we wanted to know how well the system was performing-whether it was providing successful results.”

They showed how the spread of management fads, such as the Defense Department’s Planning-Programming- Budgeting System, gave contractors entry into agencies. They also showed the role contractors played in bureaucratic turf wars. The book highlights the experience of Donald Rumsfeld, the young director of the Office of Economic Opportunity, who used contractors to gain leverage over a defiant career workforce. “Don found himself with a bureaucracy that hated him,” said Dick Cheney, then Rumsfeld’s assistant, now vice president, in an interview with Willner. In 1969, shortly after being appointed by President Nixon, Rumsfeld tapped Booz Allen Hamilton and Arthur Andersen to reorganize the agency. The new organization chart had no positions for 108 civil servants, who were left to wander the halls.

The book takes a stab at explaining the influx of contractors into government, a theme Guttman expanded on in later writings. He attributes the rise of the federal consulting industry-or the “contract bureaucracy,” as he calls it-to a group of mid-century reformers who believed government had to tap business and academia in order to carry out new missions given Americans’ aversion to big government. A pivotal text for him is The Scientific Estate (Harvard University Press, 1965) by Don Price, the first dean of Harvard’s Kennedy School of Government. Price argued that the then-emerging network of think tanks, universities and government created a “diffusion of sovereignty.” Guttman also points to Business in the Humane Society (McGraw-Hill, 1971), by John Corson, an influential McKinsey & Company executive, which heralds contracting out as a “new form of federalism” that enables the government to accomplish new tasks with help from industry.

The new approach came to life in organizations such as RAND, Aerospace Corp., and Mitre, nonprofits created during the Cold War to run Air Force weapons programs. It also took root in NASA and Energy, two agencies designed to be heavily dependent on contractors. Guttman believes government has not yet come to terms with the implications of these reforms.

THE WORK OF GOVERNMENT

Guttman doesn’t lose much sleep over the procurement of goods-the purchase of “ketchup and paper plates,” as he puts it. His interest lies in the government’s use of contractors to provide policy advice and management services, which he calls “the work of government.” The Shadow Government purports to reveal “the government’s multibillion-dollar giveaway of its decision-making powers to private management consultants, ‘experts,’ and think tanks.” Today, Guttman is less inclined to see wholesale contracting out as a scandal, but he is more critical of a federal culture that presumes agencies have the capacity to oversee contractors, despite evidence to the contrary.

Guttman says he’d prefer it if Office of Management and Budget Circular A-76, which governs federal outsourcing efforts, simply said, “If you want to contract out everything in the Defense Department, be our guest, but that may mean there’s no one left inside government who can monitor the contractors. Before you outsource, you should have to attest that there is adequate oversight capacity in place, or explain why it isn’t needed.”

That oversight, Guttman says, involves more than simply auditing to control cost overruns. His chief worry is that outsourcing will make government less accountable to the public. Contract employees are not listed in agency employee directories, and some contractors do not publicize their federal clients, making it hard to gauge their influence. Openness laws such as the Freedom of Information Act apply to civil servants, but not to for-profit contractors. Federal employees and contractors are both prohibited from acting in areas in which they would have conflicts of interest, but the rules for civil servants are much stricter and include criminal penalties.

Guttman believes these differences are anything but academic. He loves to cite a 1998 dispute in which the electric power industry came face to face with the rules governing the contractor workforce. Concerned about new clean air rules proposed by the Environmental Protection Agency, power companies tried to obtain the data underlying the rules. The EPA refused, noting the data was maintained by Harvard University, which had developed it under an EPA grant. So the companies took their concerns to Congress, which, over howls from nonprofit organizations and universities, amended FOIA to allow public access to their federally sponsored research. “Regulated industries urged openness in government, while nonprofits complained that the application of FOIA to them would be chilling to their activities,” says Guttman.

Because contractors and civil servants are governed by different rules, efforts to blur the boundaries between the two workforces are extremely troubling to Guttman. The notion that civil servants and contractors are interchangeable, except where “inherently governmental” work is involved, is a central premise of President Bush’s competitive sourcing initiative. It animated the Clinton administration’s “reinventing government” campaign as well. To Guttman, this argument ignores the essential differences between the public and private sectors. “Both the Clinton/Gore reinventing government [initiative] and the Bush management agenda aim to render civil servants more ‘contractor-like,’ but do so with little or no reflection on the fact that our long-standing laws do not now provide for the blurring of the boundaries between official and contractor status,” he says.

Critics reply that laws such as the Freedom of Information Act and the Hatch Act have little bearing on the kinds of jobs at stake in the push to subject federal work to competition in both the Bush and Clinton administrations. “By no stretch of the imagination does the question of contracting for laundry services at Veterans Health Administration hospitals raise any of the issues that [Guttman] most strongly worries about,” says Kelman. In theory, jobs that do raise these issues are protected from outsourcing by the principle of “inherently governmental” work.

But in practice, Guttman notes personnel ceilings often force agencies to hire contractors to perform new work, whether it is inherently governmental or not. And the principle says little about whether outsourcing will help an agency’s mission. The Defense Department now uses the concept of “core” and “noncore” jobs to guide its outsourcing decisions.

“People in Defense know ‘inherently governmental’ is not an adequate concept,” says Guttman. He notes that the principle has not stopped agencies from contracting out procurement oversight or military logistics work in Iraq-both tasks Guttman considers to be “the work of government.”

Guttman’s legal cases have left him deeply skeptical of government’s oversight ability. In 1993, Energy proudly unveiled a new strategy for the cleanup of nuclear weapons plants: The contractors running the plants would subcontract the cleanup to other private firms, bringing new expertise to the cleanup effort. Subcontracting allowed the firms to replace the longtime federal workforce at the plants, which was represented by the Oil, Chemical & Atomic Workers Union and its attorney, Guttman. When a subcontractor took control of the cleanup at Fernald, Ohio, the union filed suit in U.S. District Court to prevent layoffs.

During the discovery process, Guttman obtained contract documents suggesting Energy had little idea what its new subcontractors were up to. In its health and safety plan, the Fernald subcontractor instructed workers not to tell Energy inspectors about possible problems at the plant. These revelations grabbed Congress’ attention, and the subcontractor quickly settled the case with the union, retaining its workforce.

But some of Guttman’s adversaries say the world of federal procurement is different now than when he did the bulk of his research. Agencies today prefer to do business with a single integrator that oversees many firms, each of which has a specific role, making conflicts of interest easier to prevent, they argue. “It’s absolutely true that in the last 20 years, government has tightened up on a lot of things,” says Booz Allen Hamilton’s Wright.

When Peck went to the Public Buildings Service in 1995, he had few plans to hire outside contractors. But then he realized that his leasing staff lacked in-depth knowledge of the real estate market. And Congress was pressuring the agency to outsource. So Peck hired real estate firms to provide leasing advice to PBS offices in each region of the country. “That’s a pretty good way to use contractors,” he says. “If Dan had the chance to run a big agency, I think it would be really interesting to see where he would draw the line on contractors.”

GETTING AT THE TRUTH

It’s not easy to picture Guttman as an agency head. He is too iconoclastic to follow party orthodoxy, and seems physically unable to speak in sound bites. “You could never quite be sure what he might say or do,” says Bekavec. “Dan fiercely wants to get to the truth and he’s going to get there no matter what.”

When asked what he would do if he had a top management position-Kelman’s federal procurement administrator job, for instance-Guttman hesitates. “I wouldn’t know where to start,” he says. He imagines many of his ideas would face resistance from contractors, an assessment shared by his friends. “If my job is to contract out, do I really want to do less of it or do it more carefully?” asks a colleague.

Guttman believes he can have more of an effect on the outsourcing debate from his perch in academia. When he left government in 1997, he hoped to draw attention to the basic questions of accountability posed by outsourcing. He and an eclectic group of friends in academia and at nonprofit groups are studying how contractor accountability affects everything from warfare to Medicare.

He explores the same issues in the classroom. On Wednesday evenings, Guttman teaches a seminar at Johns Hopkins’ center in Washington. Its purpose is to explore the American tradition of harnessing private interests to serve the public interest, a theme that hopscotches from The Federalist Papers to present-day outsourcing arrangements. In the seminar’s second meeting this fall, Guttman paced across the front of the room, discussing Alexander Hamilton’s proposal for a national bank. The bank was designed to give the federal government a role in the nation’s economic development, while also helping the merchant class. “Today, we would call it a public-private partnership!” he exclaimed.

Guttman believes the time is right for another top-to-bottom look at the government’s use of contractors. “It’s a good time for someone to say, here are the bigger questions that aren’t getting attention,” he says. “And then you’ll see some congressmen asking questions. And once they do, they’ll see that federal officials are not completely in control of contractors.”

This is a remarkably timeless article from 2003 by JASON PECKENPAUGH, for Govexec.com, about Dan Guttman, of counsel, Guttman, Buschner & Brooks, PLLC.

By Alan Ellis |law360.com | February 2, 2020

In 1983, I asked the incoming president of the National Association of Criminal Defense Lawyers, the late Robert W. Richie of Knoxville, Tennessee, if I might chair a new committee that I was discussing with past president Gerald Goldstein, then of San Antonio, Texas, and now of Aspen, Colorado. Its task would be to represent and counsel criminal defense lawyers who were imperiled with risk of contempt, disqualification, subpoena or bar grievance arising out of their vigorous and ethical defense of their clients. It was to be called the NACDL Lawyers Assistance Strike Force.

The first client of the Strike Force was Nancy Gertner, then a prominent lawyer in Boston. Gertner and her co-counsel had been subpoenaed on the eve of trial in the U.S. District Court for the District of New Hampshire to turn over fee records from certain clients in order to show that if clients could afford top-notch lawyers, they couldn’t possibly be menial workers. (Gertner’s client was a parking attendant but had the funds to retain her.)

I flew to New Hampshire and testified on behalf of the NACDL Strike Force, which resulted in the judge’s quashing the subpoenas:

The use of the phrase chilling affect upon the role of an attorney engaged in criminal defense work by being served a subpoena in circumstances such as this is mild. To permit it would have an arctic effect with the non-salutary purpose of freezing criminal defense attorneys into inanimate ice floes, bereft of the succor of constitutional safeguards.

The monetary problems such as attorneys hiring attorneys (as we have in this case) can be better spent on pertinent matters (a lawyer’s time is his stock-in-trade). Also to be considered is the ever increasing specter of malpractice suits, the possible vindictiveness of prosecution counsel towards a successful, recalcitrant, obnoxious or obfuscating adversary, the jeopardizing of the attorney-client relationship, real or imaginary, the reluctance of capable attorneys to continue or to consider a full or partial career in the practice of criminal law and the further depletion in the paucity of capable trial lawyers because of a concatenation of events leading to abuse of process.[1]

The district court quashed the subpoenas, emphasizing the negative effect that it believed the subpoenas would have on the attorneys’ ability to defend their clients in the pending state criminal action. The court expressed concern that forced disclosure would jeopardize the attorney-client relationship at a crucial point in the defense preparation. The could also found that “[t]he actions of the U.S. Attorney are without doubt harassing” and noted that enforcement of the subpoenas in this context would deter attorneys from following a career in criminal law because of the personal and professional traumas resulting from the United States attorney’s investigatory tactics.

The government appealed, but the U.S. Court of Appeals for the First Circuit affirmed the decision.[2]

Gertner subsequently was nominated by President Bill Clinton to the U.S. District Court for the District of Massachusetts. Her nomination was strongly supported by the late Sen. Edward Kennedy, D-Mass. She served until 2011, during which time she issued numerous opinions on sentencing issues and was widely published in the area. She currently is a senior lecturer on law at Harvard Law School, where she teaches forensic science and sentencing. She is also writing a book titled “Incomplete Sentences: Gangs, Guidelines and Judges,” which is expected to be published by Beacon Press this year.

In the first of a few interviews with Judge Gertner, which took place between August and November of last year, I began by asking her why she resigned from the bench. She gave me several reasons, most of which boiled down to her frustration with the U.S. Sentencing Commission’s refusal to take any of her opinions into consideration when reworking the federal sentencing guidelines. She thought she could better contribute to ending mass incarceration by teaching law students, lawyers and federal judges at the Federal Judicial Center on sentencing. She has spoken at several NACDL continuing legal education programs, including the recent white collar program in Washington, D.C., in October 2019.

Following one of her presentations at an NACDL CLE program soon after she took the bench, I asked her what a lawyer can do when he has a serious drug client with a lengthy criminal record who was dealing significant amounts to inner city youths. “Tell me a story,” was her response. “Every client has a story.”

Many of the 30 judges whom I’ve interviewed for my Law360 series “Views From the Bench on Sentencing Representation” thought there isn’t much a lawyer can do at the sentencing hearing. [3] The judges came out on the bench with a tentative sentence already in mind. If they “moved the needle,” it was usually based on the defendant’s allocution. Judge Gertner told me she thought differently:

Whenever you have an opportunity to speak, take advantage of it. Make the sentencing hearing a public ceremony. Bring in family, friends, and supportive victims and law enforcement to the hearing. Sympathetic media also. Allocution can be very important if not written by the lawyer. On the other hand, defense counsel has to be very careful about prepping his or her client for allocution and, at a minimum, hearing what he’s going to say. Allocution can be dangerous unless the defendant is prepped.

She agreed with me that an offender’s stepping up to the plate and owning their mistake and demonstrating sincere remorse was very important. Any effort made toward restitution was one example of demonstrative remorse and carried a lot of weight with her.

Asked how she viewed mental health and substance abuse issues, Judge Gertner said that an individual who sought treatment — particularly before he or she knew he or she was under investigation — often made a positive impression on her. Mental health evaluations could be especially important when they showed what the defendant had done to make up for his or her offense. If an offender ceased criminal conduct before realizing he or she was under investigation, this also could have a huge impact on Judge Gertner’s thinking in regard to sentencing.

She entertained and welcomed reasonable sentencing recommendations by defense counsel, particularly from a lawyer who had credibility with her. Since the prosecutors generally recommended guidelines sentences, their recommendations counted for less.

When I asked her to address the government’s argument that a significant sentence should be imposed as general deterrence to others, she answered that many defendants, particularly drug offenders and gang members, know they are going to go to prison if caught. Having a felony record for others, especially white collar offenders, can be as worrisome to them as a long prison sentence.

Having taught and written on neuroscience and the law, Judge Gertner values the opinions of mental health professionals, particularly the clinicians who have treated the defendant. She agreed with me that it is a good idea to summarize the experts’ report in your sentencing memorandum and then make the experts available to the judge for questions during the sentencing hearing.

Judge Gertner also considered community service performed prior to sentencing, giving special weight to such activity if it was tailored to the crime — for example, older gang members working to dissuade younger ones from criminal activities.

Judge Gertner said she typically began focusing on the sentence she might impose as soon as she received the presentence report and sentencing memoranda of the parties, generally a week in advance of the sentencing. “Presentence memoranda were very important to me if they presented the full picture of the client, warts and all,” she explained. But 18 U.S.C. §3553 is an empty vessel to her. “It’s a nothing burger. It needs to be filled in in the sentencing memorandum.”

Character letters can be important unless they appear to have been written by the lawyer. “You should quote from the better ones in your sentencing memorandum and attach them as an exhibit. Attach others that are good that you are not quoting as a separate exhibit.”

If there were significant guidelines issues to be decided, she appreciated counsel who gave her as much time as possible to research these and other issues raised by the parties. She considered a latefiled sentencing memorandum if something came up at the last minute, although often these are submitted by bad lawyers. Sentencing videos were “ok” if not too slick.

Early and frequent contact with the probation officer can lead to a positive presentence report, Judge Gertner noted:

The PSR needs to be a megaphone for the offender. The lawyer should find out as much as possible from the probation officer assigned to the case including whether the probation officer talks to the judge prior to sentencing. … Find out if the judge meets with the probation officer and/or follows their recommendations. Learn how the judge feels about the U.S. Probation Officer or the office in general.

In the end, as with most of the judges whom I’ve interviewed, the “why” question was critically important for Judge Gertner: “Why did your client do what he or she did? I wanted to know what is going on here.”

Indeed, this was one of the reasons Judge Gertner was so vocal an outspoken critic of the guidelines:

They didn’t take into account why an offender did what he did. For example, why was a drug dealer selling his drugs? Was he doing it to support his addiction? Was he doing it to buy school supplies? Was he doing it because he was living on the street and supporting his younger siblings? The guy who is essentially living high on the hog from drug trafficking is a different offender than the guy who is selling cocaine for school supplies. Also, if this guy had an opportunity to make a living wage, perhaps he wouldn’t have had to sell drugs if this guy had neurological damage. If this is your argument, you needed to give me evidence of these mitigating factors. You couldn’t just argue it.

I asked her another “why” question: How can defense counsel can endeavor to show a judge why the defendant is unlikely to reoffender. “I found it very helpful when lawyers gave me a plan for their client’s rehabilitation. It can be even better if the defendant has embarked on rehabilitation prior to sentencing.”

The ultraconservative Charles Koch Institute, on the criminal justice reform section of its website, states that, “Jail should be reserved for people who pose a threat to public safety.” In other words, we should be sending people to prison who we are afraid of, not that we are just pissed at.

Judge Gertner agreed and suggested that’s a good point to make to a sentencing judge.

For most judges, the key questions they want answered are:

1. Why did your client do what he did?
2. What has he done to own his mistake and demonstrate sincere remorse?
3. Why was the behavior out of character with an otherwise law-abiding life if it was?
4. Why is he unlikely to do it again?
5. Why should I cut him a break?

For Judge Gertner, it appeared that the key questions she wanted answered were: Why did your client do what he did, and why is he unlikely to do it again?

© 2020, Portfolio Media, Inc.
Original article available at law360.com .
Reprinted with permission.

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[1] In re Grand Jury Matters , 593 F.Supp. 105 (D.NH. 1984).

[2] In Re Grand Jury , 751 F.2d 13 (1st Cir. 1984).

[3] See also, “What Federal Judges Want to Know at Sentencing,” The Federal Lawyer (September 2017) https://alanellis.com/views-bench-mistake-demonstrate-sincere-remorse/ and “Own the Mistake and Demonstrate Sincere Remorse,” The Federal Lawyer (September/October 2019) https://alanellis.com/news/blog/sentencing-tips/.

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Alan Ellis, a past president of the National Association of Criminal Defense Lawyers and Fulbright Award winner, is a criminal defense lawyer with offices in San Francisco and New York. He is the co-author of “Federal Prison Guidebook: Sentencing and Post Conviction Remedies.”