Tuesday, May 8, 2018

You Only Live Once

This past weekend my family and I celebrated my son's Bar Mitzva. For those who are not familiar with what a Bar Mitzvah is, it is when a boy turns 13 and "becomes a man." It is a time for celebration and is the most important milestone in a young man's life. In other words, it is kind of a big deal.

Now I am not saying that my son's bar mitzvah was more of a big deal than another child's. However, my time in prison gave me a little more appreciation for the day than those who are lucky enough to not have to deal with it. It was not always a forgone conclusion that I would be there and it was certainly not a certainty that even if I was there that I would be able to fully enjoy the experience. When I was indicted in 2015,  my son was almost 10; three years shy of his bar mitzvah. My initial indictment had multiple counts with each one carrying a maximum sentence of 20 years. On paper at least, I was facing a potential prison term of over 100 years. Now obviously, many other factors come into play when a sentence is handed down but 20 years was certainly not out of the question if I would have been found guilty on all of the counts in the indictment. My lawyers estimated that in actuality if I were to go to trial and lose I was looking at a very realistic possibility of receiving a 10 year sentence. 10 years.

And that is when, as they say, the shit gets real. 10 years. At the time, an acceptable plea was not yet on the table so I had to contemplate what 10 years was going to feel like. Allow me to explain what goes through a person's brain when contemplating 10 years in federal prison. I looked at my 12 year old daughter and realized I would basically be missing her life in high school and college as she would be 22 when I got out. I looked at my 5 year old daughter and thought of her growing up without he knowing her father and me without really knowing her either. I looked at my 10 year old son and realized that 10 years in prison meant that there was a pretty good chance that he would not have his father around when he became a bar mitzva. Finally I looked at my wife and wondered how any marriage can survive when one member has to spend a decade in prison. And even if it could survive, should it? I think on some level I knew at that moment that no matter how innocent I felt I was, no matter how unjust my prosecution appeared to be, I was not going to go to trial. I was not going to risk missing out on the bar mitzva or any other important event for that matter.

Now I did find out that 10 years, 120 months is not really 10 years. Factoring good time, I was looking at around eight and a half years. I would probably get a year off for the alcohol program which would take me down to seven and a half years and I probably could have worked out to spend the last year split between  half way house and home confinement. In other words, 10 years would probably "only" been six and a half to seven  years in actual prison. Well it is not as bad as 10 years but six and a half years is still a very long time to be away. Assuming that I would have gone to trial in 2016 and lost, I would still have over four years left as of this past weekend when the bar mitzvah took place. My ability to attend would certainly have not been certain.

So what is my point? Well the first point is that there are events in life that once they pass are gone forever. Most of us take it for granted that these events will come to pass and we will be there for them, be it a high school graduation, a sweet 16, the marriage of a child or even a bar or bat mitzvah. We do not believe and certainly cannot conceive a scenario where we will not be there. We assume that we will remain in good health and we assume that there will not be other impediments to our being present at these important events. Unfortunately, things very rarely go according to plan. Only once faced with the prospect of not being there for an important day or event does the magnitude of its importance come to the surface. So yes, having faced this possibility of not being there and having actually spent time in prison, I do think that I experienced a joy that most parents cannot appreciate. On the other hand, at every special event such as this one, everyone should experience that same joy because circumstances can change in the blink of an eye. Maybe the problem is that we do take things for granted and once in a while we need a good kick in the ass to remind us what is important.

On a more practical level for a defendant facing trial, these issues must come in to play when considering a plea. As I have stated many times, when considering a plea, issues of guilt or innocence need to be completely discarded. Unfortunately, the system is such that if a defendant goest to trial, and loses, he gets a much worse sentence than the government was content with had he avoided a trial and pled guilty.  We are now playing the game of Risk. And make no mistake about it, to the prosecutor this is one big game where the government has a tremendous advantage. How much risk is someone willing to take to try and avoid prison? How many events is he willing to risk avoid missing? Is he willing to risk having his children grow up without a parent? Yes, these are hard questions. And yes the plea has to be evaluated when compared to the worst possible outcome at trial. But nevertheless, the question has to be asked.

I elected to take the plea. I was not willing to risk it. Could I have won at trial or had a guilty verdict overturned on appeal? Maybe. But then again, based on my plea, I was looking at a year in actual prison. One year on a plea or six and a half best case scenario if I went to trial and lost. For me, the choice was simple. I was going to the bar mitzvah and I was not going to take any risk and miss it! After all, you only live once!


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