I have no good answers for you as to John Heart

Yesterday was the oral argument before the First Circuit of one of my former clients. Let's call him John Heart for now. I was about the fourth attorney John had. The first, a New Jersey attorney, ended up disbarred not too long after making his pro hac vice appearance in San Juan, Puerto Rico. Then came two more attorneys, and both ended up withdrawing. John was a very demanding client. Then came yours truly.

John had been charged in one of some 5 related indictments returned by the grand jury the same day. Each of the indictments was targeted at a different drug trafficking organization. John was alleged to be the leader of one of them. A huge war broke out among these groups for control of drug trafficking points. You had situations in which, at times, groups A and B banded together to fight groups C, D, and E, who had also banded together. At other times it would be groups A and D against groups B, C, and E. In any event, many, many persons ended up getting murdered. And these weren't just any murders, they were real massacres, where you would have one body with over 100 shots from AR-15's and AK-47's fired at him.

John had the drug trafficking conspiracy charge brought under 21 U.S.C. 846, and also a Continuing Criminal Enterprise (CCE) charge under 21 U.S.C. 848.

The amounts of heroin, powder cocaine, crack, and marihuana involved were definitely more than enough to place him at a Base Offense Level of 38 under the sentencing guidelines, which is the highest BOL the guidelines provide for drugs. The 2 level weapons enhancement was easy to establish, as John had weapons convictions during the course of the conspiracy plus there was much testimony coming in from snitches that would establish that. In fact, John was alleged to have participated in or directed numerous murders. It was also clear that John would receive an offense role enhancement of 4 levels for being a leader in an offense involving 5 or more participants. This placed John at an offense level of 44, which does not even exist under the sentencing guidelines, as the highest offense level is 43, which mandates life imprisonment. And I'm not even considering the alternate route through the cross-reference to the murder guideline, which would have also resulted in life imprisonment.

So why the prosecutor bothered to bring a CCE charge against John is beyond me to understand. To prove the CCE charge is a pain, rather than going with a much easier to prove conspiracy charge.

Did John have a chance of being acquitted? Hardly! The Government had as a witness John's closest friend, who allegedly had committed many of his crimes -and there were many he had admitted to- with John by his side. This fellow had already testified at several trials in the related cases and had been the strongest witness on the government's side. Everyone had been convicted in each of the cases in which he had testified.

Initially, John was being offered a plea for 25 years, which he had rejected. We had litigated a number of issues, including the constitutionality of section 841 (remember Buckland from the 9th, before they came down with an en banc opinion). We had also raised the stuff about the government paying, in essence, bribes to their snitches by offering them reduced sentences, etc. And we had even raised an issue as to whether an indictment returned under an acting U.S. Attorney whose duration in office without ever being nominated or confirmed by the Senate had de facto become an invalid appointment, and, for said reason, any indictment returned under his authority, was invalid. We lost them all.

Some months before trial I had convinced a supervisor (no longer there) at the U.S. Attorney's office to grant me a plea for 17 years, and had immediately gone to visit John, thinking he would jump at this offer. After all, he had been waiting trial for some 3 years and was 27 years old, and was fully aware that if -or should I say when- found guilty following a trial he would receive a life sentence. John was not impressed with the offer, and told me if I got him 15 years he would take it. I suggested that he should accept this one before the supervisor got a better look at the case file, since it was less than some of his underlings had plead to! John still said "no."

Shortly before trial, John decided that he wanted another attorney, perhaps thinking that the trial would again be delayed. I think that John figured on one of three things: First, that maybe a new attorney would get him less time. Second, that if his trial were postponed so much that his friend and government star witness were released before then, he would simply disappear and not testify against John. Third, that despite his friend already having sold his soul to the government, he just might not be able to testify against John knowing his testimony would put John -his dear friend- away for life.

As John was making arrangements for his new attorney at the last minute (something I found out about just the day before the scheduled trial), the prosecutor moved for dismissal of the CCE charge. This was a different prosecutor than the one who had presented the case before the grand jury. I had recently had a trial with him and had observed that he was not the sort of prosecutor that presented every piece of evidence he had at his disposal, but, instead, presented a very focused case, limiting the evidence to what was necessary and essential.

So John got his new attorney, with only a week (after a brief continuance granted by the Court) to prepare for a case involving a lot of evidence. In my presence, one of the new attorney's first actions was to try to see if he could get John an offer for 20 years. The prosecutor laughed at him, and told him that perhaps he had not spoken enough with his client, since John had already rejected the 17 years and I had managed to keep that offer open for months with no results, so why would John accept 20 now? In any event, the prosecutor said that it was 25 years or trial.

So John went to trial with an attorney who had little time to prepare a complex (even if a losing) case, and was found guilty.

John is now serving life. He left behind a wife and kids and I wonder how he will feel when the time comes that he would already have been released had he taken up the 17 years. I have no idea what issues he raised on appeal, and did not attend the oral argument yesterday.

John is a fighter. He always was. He always had a joke to tell, and laughed with a lot of feeling. He was also a bright guy, and I always found him easy to get along with. You always wanted to help him. But if you ask me why he said no to the 17 years, knowing the consequences, I don't have any answers for you. At least not any satisfactory answers. This was not a defendant who was telling counsel "let them prove it!" No, John knew better. Or did he?