George Cooper motioned for me to join him in the hall, and we moved out of earshot of the spectators. “I don’t have a good feeling about this,” he said. “Coburn’s loaded for bear, and I don’t think it bodes well for your client.”
“I don’t know. I was just thinking it would be easy to distinguish her from that scumbag of a defendant. But you know the judge far better than I. Can I ask for a continuance?”
“On what ground? It’s not unusual for a proceeding to be delayed an hour or even more. You certainly can’t tell the judge you’re afraid he’s lost his impartiality. Even if it’s true.”
My palms were sweaty. I wiped them on the skirt of what I’d always considered my lucky gray suit. I should’ve ignored my superstitions and worn the red power suit.
“Do you have any suggestions for me?” I asked Cooper.
“Not really. He likes it if we don’t reiterate what we’ve already submitted to him in writing. So avoid long arguments if you can. You and I are in essential agreement on what should happen, but I can’t give the judge the impression I’ve gone soft on crime, especially after what just happened in there.”
“Do you think we still have a chance of getting our downward departure?”
“Sure. But we probably would’ve been better off to come back later for a reduction in the sentence, after Joe Ames and Thorpe Akani are convicted and sentenced. It’s too late now, though. We’ve already filed our motion.”
Cooper looked at his watch. “Look, I gotta hit the men’s room before we go back in. Good luck.”
“What’s up?” Kate asked when I joined her outside the courtroom.
I marveled at how little she seemed to care that she and I were on the outs, demonstrating to me, once again, that our friendship had become toxic. “Cooper and I were just talking strategy,” I said. “He thinks the Johnson sentencing may be a bad act for us to follow. I can’t tell. We’ll just have to hope Judge Coburn regained his composure—and his objectivity—during the recess.”
“Que sera. I just want this over with,” Kate said, striding back in to court. I also marveled at her composure.
As I walked back up the aisle of the formidable courtroom, my stomach churned, and I felt a wave of panic overcoming me. No! This cannot happen now. I plunged ahead through the swinging door of the bar and collapsed into the chair next to Kate’s. At least it felt like I collapsed.
Okay, just go on—move through it. I pulled a legal pad out of my briefcase and went through the motions of studying my notes, frantically hoping I could calm myself before it was time to give my sentencing argument. As an ADA, I’d been able to question and cross-examine witnesses with no fear, but lengthier statements had sometimes been difficult—especially with too much downtime beforehand.
Just as more unsettling sensations began swelling within me, David tapped me on the shoulder. I spun around and saw he’d selected a seat in the left front row, just behind our table. He made direct eye contact, gave me a thumbs-up and sat down. God bless him—he’d sensed my panic and was there for me. It was enough to bring me out of myself and back into the courtroom. Maybe another time I’d be angry with myself for needing his rescue, but right then all I felt was gratitude.
Judge Coburn returned to the bench moments later, his face expressionless. My confidence returned as I began searching for clues as to his thoughts. I’d always considered myself a good reader of people. I can make the most of this strained and strange situation. I can convince this man to be lenient toward my client. With a strong, clear voice, I entered my appearance on behalf of Kathryn Daniels.
There would be no levity or informality during this hearing. Judge Coburn delved right in to Helen Garrety’s presentence report and accepted her modified calculation of the sentencing guidelines. Kate was looking at twenty-seven to thirty-three months in prison when we moved on to the next phase, the argument for a sentence below the guideline range.
“Now I’ll hear your arguments as to departure,” Judge Coburn said. “Please begin, Mr. Cooper.”
George Cooper rose, buttoning his suit coat. After the briefest glance at his notes, he began. He spoke in an informal yet eloquent manner, with nary an “um” or “ah.”
“Your Honor, as I outlined in my motion for downward departure, Kathryn Daniels provided very valuable assistance to my office in two specific investigations. The first is the case captioned U.S. versus Joseph William Ames. Ames had been suspected of trafficking in substantial quantities of cocaine for several years, but he was well insulated from law enforcement. With information given by Ms. Daniels, and with her grand jury testimony, we were able to obtain a two-count indictment against Ames. As the Court is aware, one of the counts alleges Ames provided the cocaine that caused the death of twenty-three-year-old Yvonne Pritchard last fall. If necessary, Ms. Daniels will testify at his trial. However, we’re already in plea negotiations with Ames’ defense counsel, largely because of the solid case Ms. Daniels gave us.”
Cooper took a sip of water. “The second case, which involved fraudulent documents, has not yet resulted in an indictment. Ms. Daniels gave a lengthy statement concerning one of the potential defendants, whom I can’t name in open court for obvious reasons, but the investigation is ongoing. The FBI informs me the leads provided by Ms. Daniels are panning out, and we expect to indict at least three individuals as a result. These individuals would likely have gone undetected but for Kathryn Daniels’ assistance.
“In summary, Your Honor, the government believes the defendant’s assistance clearly warrants the three-level downward departure for which we’ve moved. Thank you.”
Cooper unbuttoned his jacket and was halfway to his seat when Judge Coburn asked, “Would you care to comment, Mr. Cooper, on the probation officer’s suggestion at paragraph seventy-one of the presentence report?”
Cooper resumed standing and shuffled through the papers on his table to find the report. “If I might have a moment, Your Honor?” Then, without glancing in the judge’s direction, he studied the report as if there were no urgency to respond.
My thoughts reeled as I paged through the report to find the paragraph in question. Out of the corner of my eye, I saw Cooper leaning over the table and jotting a few words on his legal pad. Don’t piss off the judge, I thought, while at the same time outlining an argument in my mind.
The lull couldn’t have lasted more than a minute or two—and far too short a time for me to formulate a strong rebuttal—though it must’ve felt interminable for Kate and the spectators.
Judge Coburn interrupted the silence with derision. “For the benefit of those who have not studied the report, I’ll quote paragraph seventy-one: ‘According to Section 2B1.1, Note 18(A), in cases where the monetary loss determined under the guidelines “substantially understates the seriousness of the offense,” an upward departure may be warranted. The National Institutes of Health lost more than the money the defendant embezzled. They bargained for solid research and got questionable data from an impaired person.’” He looked down at the prosecutor.
“Judge,” George Cooper said with equanimity, “perhaps I should have been more clear in my letter to the Court dated January third. I’ll read the pertinent paragraph: ‘The government believes there are no appropriate grounds for upward departure.’ I then went on to advise I would be filing a motion for downward departure. I thought it implicit in my comment that the probation officer’s suggestion for upward departure was without merit. I can specifically tell you the National Institutes of Health found no fault with Dr. Daniels’ research itself. In fact, the study is continuing under the leadership of her colleague, Dr. Braxton.”
Without skipping a beat or tipping his hand, Judge Coburn turned to me. I wish we were in front of Judge Judy—she always lets you know what she’s thinking.
“Ms. Spencer, your comments?”
“Your Honor, had I known Ms. Garrety’s offhand suggestion would warrant this Court’s serious consideration, I would certainly have included a detailed response within my objections to the presentence report. I agreed with Mr. Cooper that there was no merit to the suggestion.”
Judge Coburn looked across the bench, avoiding eye contact with either Cooper or me, and spoke directly to the spectators. “Just because the prosecutor and the defense attorney agreed to buy a pig in a poke,” he said, “doesn’t mean I’m bound to buy into it too.”
He glared at me. “Ms. Spencer, you were provided with adequate notice of the potential upward departure through the presentence report. However, if the parties wish a continuance, we can resume this hearing on March first. What’s your preference?”
Shaking her head, Kate moved as if to stand in reply. While my hand shot over to still her movement, I faced the judge. “May I please have a moment to confer with my client?” I asked with all the courtesy I could muster.
Judge Coburn nodded, and I leaned my head toward Kate’s, signaling her to whisper. “I do not want a continuance,” she hissed, loudly enough for even the near deaf to hear.
“Hold it down, Kate,” I said, flashing back to my days as an ADA when I’d have to calm the occasional hotheaded cop whose integrity was being questioned by a lying witness. “You’ve got to know this afternoon has turned into a nightmare. I think we’d be wise to take the continuance he’s offered so we can regain some control of this situation.”
Still shaking her head, although less perceptibly, Kate grinned. “I gots to know,” she said.
“What?” I asked, more astonished by her expression than the question. What was this mood swing all about?
“You know. The line from ‘Dirty Harry’ when the bad guy just has to know if Clint Eastwood has another bullet in his gun.”
“My God. Are you high?”
“No, but I might be two or three weeks from now.”
“Kate, this is no time for foolishness. This is a bad situation.”
“I know. Believe me, I know. But the suspense is killing me. And I just want to get it over with.”
“But going ahead today may hurt your chances when you appeal the sentence,” I said.
“I’m not going to appeal, Caroline. I’m guilty. I pled guilty, and I want to know now what my punishment is going to be.”
“You’re sure?”
“I’m sure.”
I fleetingly thought of requesting a recess so I could have Kate put her choice in writing, but I was afraid of further irritating the judge.
After a quick silent cleansing breath, I rose. “Thank you for the time, Your Honor. My client wishes to proceed with sentencing today. For the record, and to preserve the issue for appeal,” I said, as Kate kicked at me under the table, “I object to the proposed upward departure. Dr. Kathryn Daniels was a well-respected, conscientious scientist, and I submit her personal use of cocaine did not affect the quality of her research. As Mr. Cooper indicated, no one, including the NIH, has ever once questioned her results.”
I flipped the page of my legal pad. “As Your Honor will recall from the employment section of the presentence report,” I continued, “my client received an unprecedented early promotion to the position of associate professor based on her excellent evaluations and research skills. There is simply no evidence her research was flawed, and there is no valid ground for upward departure. That’s all, Your Honor.”
To my surprise and pleasure, he nodded. Maybe, just maybe, he’d accepted what I had said.
“Very well. If there are no other comments regarding departures?” Judge Coburn inclined his head, first toward me and then toward George Cooper. We shook our heads. “Then we’ll move on. Ms. Daniels, do you wish to make a statement?”
Once again, I was caught off guard. I’d expected the judge to rule on whether he would depart upward or downward from the guideline range before proceeding to the final sentencing arguments. But no way was I going to question his protocol. I nodded to Kate, and we both stood.
“Thank you, Judge,” she said in a clear voice. If only she could sound halfway nervous, I though with chagrin. But, like the Kate Daniels of old, she spoke with authority. “There’s not much I can add to the written statement I’ve already submitted to you. However, I would like to say a few words publicly.
“When I graduated from medical school, I never could have imagined myself in the position in which I find myself today. I had a physician’s knowledge of the pharmacology of drugs, but I had no clue what cocaine was doing to me on a personal level. Although I knew better, I became an addict, plain and simple.”
Kate hung her head for an instant in what might have been contrition, then looked back up at the judge. “My long-term love affair with cocaine brought me here,” she said. “I could have found a way to break from this despicable drug. But I didn’t. Instead, I abandoned my principles and stole from the grant program. I abused the trust NIH placed in me. I brought shame upon the university that had so graciously hired me and promoted me. I caused my family and friends untold pain. For all of this I am profoundly sorry.
“I hope the sentence you impose, Your Honor, will allow me to return to the community as soon as possible so I can begin to make amends for my actions. Thank you.”
What a tough act to follow, I thought, as the judge turned to me for my sentencing argument. I had urged Kate to prepare her allocution ahead of time and to let me read it. At first, she’d simply put me off, saying she hadn’t gotten to it. But as the sentencing date approached, she flatly refused to discuss it. “I’m not an idiot,” she had e-mailed me the last time I broached the subject. “I don’t need you coaching me on how to be contrite.”
Kate’s short and forthright statement was just right. The judge regarded me with courtesy as I addressed him. He must have been moved by her words. And he must not have been put off by her confidence.
I lacked Kate’s commanding oratorical style, and, in fact, stumbled over my first words. But my many years of courtroom experience took over, and I talked to the judge, hitting every point on my outline without missing a beat.
“Your Honor,” I stated in closing, “Kathryn Daniels has seen the error of her ways. She sought treatment for the addiction that clouded her judgment and led her here, and she’s made remarkable progress toward recovery. She’s already paid dearly for her crimes with the loss of her livelihood and her stature within the academic and research communities. Dr. Daniels liquidated all her assets to make restitution, and I have with me a cashier’s check for the full amount owed.
“Kathryn Daniels is a bright, resilient woman who has much to offer the community. Given the sentencing guidelines are advisory rather than mandatory, a term of probation is an option. I urge the Court to impose probation, and I do not believe a sentence of probation would depreciate the seriousness of her crime. However, if the Court elects to sentence her to a term of confinement, I would ask you to give her the opportunity to return to meaningful and productive work as soon as possible.”
I glanced at my outline and saw with relief I’d reached the last item on my list. “Finally, if a term of imprisonment is imposed, we ask the Court to recommend Dr. Daniels be designated to serve her sentence at a facility in close proximity to her family in northern California. Thank you, Your Honor.”
As I sat down, Kate smiled and dabbed a wadded tissue to the end of her nose. I snuck a peek up at Judge Coburn. Is it a positive vibe I feel? I hope so.
“Mr. Cooper. Your comments,” he said.
Cooper stood. “For the reasons I’ve already set forth in writing and in court today, the government is recommending no upward departure but rather a three-level downward departure. I’d ask for a sentence somewhere within the resulting range of eighteen to twenty-four months’ imprisonment, and the government has no objection to designating her to a prison in northern California. I’d also ask the Court to order restitution in the amount of $147,682, which Ms. Daniels and my office agree is owed, and Ms. Daniels is prepared to pay. Thank you.”
The silence in the courtroom was as intense as the cacophony in my brain as Judge Coburn paused before pronouncing sentence.
He looked down at his desk, sorting through the many papers piled on it. The suspense was palpable. I’m sure I stopped breathing. I could see Kate’s grip on the edge of the table tightening. After what felt like an eternity, Coburn found the single page he’d been searching for. When he began to read from it, my heart sank. I knew without question he would show no mercy toward my client. He’d listened to Kate’s plea and mine. But in the end he’d gone back to find the tough sentencing statement he’d prepared earlier.
“First, I’ll address the prosecutor’s motion for downward departure from the guideline range. I don’t doubt the defendant’s cooperation was very helpful. The United States Attorney’s office provided me copies of her statements to authorities, and I have seen the indictment in the case of Joseph Ames. The sentencing guideline manual says I can’t use the information she gave to determine her sentencing range. But I can use it to decide whether or to what extent I should depart downward to reward her cooperation.”
The judge looked straight at Kate, his eyes icy. “This defendant was up to her eyeballs in criminal activity for a long time. Not only did she steal money from the university, she willingly consorted with drug dealers, con men and counterfeiters. She had in her possession a counterfeit passport while she was on bond in this case. And she didn’t turn it in to the FBI until after she realized she might get a reduced sentence for it. This defendant was not, as she would have us believe, an upstanding citizen who engaged in a little aberrant behavior. She was a criminal, plain and simple. And I am denying the government’s downward departure motion.”
I felt devastated and betrayed. George Cooper had told me the judges, including Judge Coburn, rarely denied their cooperation motions. And now he’d done it twice in one afternoon. Worse yet, I knew I had virtually no chance of winning on appeal: A judge has almost unlimited discretion in deciding whether or not to grant a downward departure. I glanced over to the prosecution table, where George Cooper hung his head in dismay. He didn’t meet my eye.
Behind us, Kate’s mother struggled to contain her sobs. I could hear Corbett Daniels mumbling, “…son of a bitch…can’t…”
Kate turned and glared him into silence.
“Next, the issue of upward departure,” Judge Coburn said. “I intend to depart upward two levels because the defendant’s conduct was more serious than the monetary loss reflects. I believe the probation officer—Ms. Garrety—correctly stated the facts: The National Institutes of Health lost more than money here. They gave the defendant a substantial grant, expecting valid, innovative research on a potential cure for cancer. I know there were no guarantees the research would be successful, but the defendant was obligated to give it her best shot, and she didn’t.
“Mr. Cooper and Ms. Spencer told me there’s no evidence the research was flawed, and I certainly can’t go out and prove it was. But what the defendant herself told the probation officer is very revealing. I’m quoting from paragraph forty-six of the presentence report. ‘Daniels admits she sometimes worked in the university research laboratory while under the influence of cocaine. She states in such cases, she double-checked the instrument readings and her data entries or had a laboratory assistant do so, just to make sure there were no mistakes.’”
Judge Coburn paused for effect, again speaking to the spectators. “What’s to say the defendant’s ‘double-checking’ or the ‘double-checking’ by a less trained laboratory assistant was sufficient to ensure accuracy? And even if it was, how do you account for the waste of time involved? This defendant squandered her God-given talent. She should have been using her skills and imagination for the benefit of the medical community. Instead she expended her time and energy obsessed with getting high.”
At this, Corbett Daniels made a grand exit from the courtroom, with Margaret—sobbing uncontrollably—in tow.
“Shit,” Kate said under her breath to me. “Why did he even come?”
But Judge Coburn was done with the caustic words. While he intoned the formal sentencing statement, I sat numbly, listening but not fully hearing the words. Somehow I managed to jot down the salient points: three years in prison, a ten thousand dollar fine, three years of supervision, and the agreed-upon restitution. Kate would have three weeks to “put her affairs in order” before turning herself in to serve the sentence. She had ten days in which to file her notice to appeal the sentence, and I was obligated to represent her until or unless relieved by the Court of Appeals.
And then it was over. Judge Coburn rose to leave the bench. Like robots, we stood too. Kate turned to me. “Don’t worry, Caroline—you’re done with me,” she said. “I’m not going to appeal.”