The title of this post is a line that Manny Real, a United States District Court judge in Los Angeles of some hard-earned infamy, likes to bark at lawyers before him. He’d utter it when a lawyer insisted on arguing a point when he or she had already won the issue. Judge Real was referring, of course, to Satchel Paige’s sage advice, “Don’t look back. Someone may be gaining on you.” This coy reference is intended to tell the lawyer to sit down and shut up and leave well enough alone. Few lawyers catch the reference; most stand there, terrified and gaping, until some merciful soul hisses to them that they’ve won and to shut up. Judge Real derives visible enjoyment from this process.

In fact, cultivating a sense of when you can submit and sit down is difficult. It fights with our inclination as lawyers to make sure we have made a full record and said everything that can be said. But saying too much can do more harm than good. It can piss off the judge, which is bad in the long term and occasionally ruinous in the short — I admit I have once or twice managed to argue a judge off of a ruling in my favor. And sometimes, arguing when you’ve won threatens your client with dire consequences.

Case in point, courtesy of Eugene Volokh: a Ninth Circuit decision in United States v. Beltran-Moreno, in which Judge Reinhardt (who has carefully cultivated infamy of an entirely different sort in other quarters) reams out some appellate attorneys for arguing when they should have let well enough alone. Their clients had managed to secure sentences that were more lenient than the law allowed because the district court had misapplied some mandatory-minimum sentences to their benefit. The result was still harsh — they got thirty-five year sentences — but they should have gotten forty-year mandatory minimum sentences, and the sentencing guidelines recommended life sentences on top of that. (All of this, by the way, is the result of extremely harsh federal gun laws — if you get popped with, say, three bank robberies, and the government is able to charge you with carrying a gun in each robbery, you are looking at a mandatory-minimum sentence of fifty-five years on the gun counts before you even get to the bank robberies. That’s a lot less than many people convicted of murder serve.)

Despite this windfall, the appellate attorneys doggedly pursued weak appellate arguments that, if successful, could have resulted in the case being remanded to the district court from resentencing, at which time the court could have imposed the higher lawfully mandated sentence. Fortunately for the defendants, the Ninth Circuit affirmed the sentence rather than subjecting them to that risk. If this was the result of the appellate attorneys not understanding the mandatory-minimum and guideline issues in play, it reflects very badly on them, as Judge Reinhardt suggests. However, I think there’s another possibility that the Ninth Circuit ignores. To some people looking ahead at a federal sentence, thirty-five years (which translates to at least twenty-eight years of time served, assuming good behavior) might as well be a life sentence. Criminal defendants — who often have difficulty weighing risks, rewards, and probabilities — might conclude that a 1% chance of a lower sentence is worth, say, a 25% risk of a higher sentence. People in those circumstances crave hope. Convincing them that the hope is neither realistic nor rational, and that in twenty-eight years they will be happy to get out and angry if they are kept in because they made the wrong choice, is part of the difficult job of client control. Many of my clients, presented with the same circumstances, would have wanted to roll the dice the same way. Therefore the appellate attorneys’ failing may have been one of client control, not of legal analysis.

Last 5 posts by Ken

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