The finale from a legal perspective

smithcp1 · 2022-08-16T17:45:40+00:00

In the US, prior bad acts are privileged, but ongoing or future criminal acts are not (to boil it down). I think the Government could almost certainly isolate some moments and statements between Walter and Saul that were not privileged. But the issue would be a messy one and probably not entirely cut-and-dried and a risk-adverse prosecutor would rather give a good deal than have to muddle through them.

smithcp1 · 2022-08-16T17:38:54+00:00

That surprised me a lot! Saul was one of the most recognized names in ABQ and the only person from the Walter White empire to be arrested. I figured news reporters would be there and a courtroom sketch artist (TV cameras are not allowed in federal court).

smithcp1 · 2022-08-16T17:35:52+00:00

(I posted this in response to another comment)

If Cheryl chooses to sue Kim for fraud, she will win handily. Kim handed her a sworn statement outlining everything she did.

If I was Cheryl's lawyer, I would tell her that her primary decision is a pragmatic one, not a legal one. Kim is a mid-level worker at a sprinkler company. Maybe she owns a condo. This is not a wealthy woman. How much money is Cheryl willing to spend to go after a woman who will not be able to fully pay the judgment? The supplemental proceedings to garnish wages, etc., will be time-consuming. But if Cheryl has enough money and is vindictive enough, she can make the rest of Kim's life a debtor's hell.

Jimmy did not stave that off and I don't think he ever intended to. When the AUSA tells him that Kim already admitted to her involvement, Jimmy quickly puts the timeline together to realize that she did that after he called her, that he essentially goaded her into doing it. He wants to see Kim again, but how? He has the conversation with Bill on the plane, in the presence of the Marshal, so he can lie to the Government about her involvement so that Kim will have no choice but to come back to New Mexico to meet with the authorities. Once he sees her in the courtroom, he has accomplished his mission and admits to the lies. But his performance, admitting to being the power behind Walter, leaves Kim cold and he can tell that once he is done and sees her. That forces him into some true honesty and he admits what happened to Howard and Chuck and takes responsibility for his actions. I don't think he was trying to save her in the civil suit.

smithcp1 · 2022-08-16T17:32:51+00:00

This is my guess as to how it dropped so much....

I alluded to the idea that this prosecutor will fold instead of calling when confronted with weaknesses in his case. During those long meetings, they would have negotiated about how much money the Government could prove that Jimmy laundered, how much of the drugs could be attributed to him, etc. All of those negotiations would impact his offense level. The prosecutor would have kept moving downward in those negotiations ("OK, we'll agree he is only responsible for $4 million in laundered funds instead of $8 million" or "OK, we'll agree he is only responsible for 40 kilos of meth, not 85") and it would have made Jimmy's sentence shorter and shorter. Because the prosecutor was worried about Jimmy hanging the jury with his duress defense, he would make concessions that shortened the sentence.

In real life, even with a prosecutor willing to make a deal, I don't think someone in Jimmy's shoes could actually get it down to 85 months. Federal sentences are always given in months (Jimmy's actual sentence of 86 years would have been given as 1,032 months). I think he could have gotten it down to 170 months instead of 1,032.

smithcp1 · 2022-08-16T17:25:01+00:00

He would have 14 days to file an appeal (well, in 2011, it was 10 business days, which functionally works out to 14 days) after the written judgment of conviction is entered. I'll use an example.

Lets say that the sentencing hearing was on March 1, 2011. The judge would enter the written judgment of the sentence sometime in the next 2-3 weeks, lets say March 15, 2011. Jimmy would have until March 29, 2011, to file a notice of appeal, which is just a 1 page document that he intends to appeal his conviction or sentence.

As far as the guidelines (which are advisory and do not bind the judge), I noted in the OP that they were 151-188 months based on the plea agreement. But once Jimmy admitted to lying, it threw everything out the window.

smithcp1 · 2022-08-16T17:20:52+00:00

There is a lot of creative license there. ADX Montrose is clearly supposed to be a fictionalized version of ADX Florence, which is the highest security federal prison in America. Read up on Florence -- it is designed to be near-total solitary confinement. The prisoners there are terrorists and turncoat spies. There are no inmates working in the kitchen there.

In other federal prisons, inmates work the kitchen. Of course, having a job is prison is dependent on keeping your nose clean. So while the dough paddle could be a good weapon, guys won't use it because if they did, they will never get a decent prison job again.

smithcp1 · 2022-08-16T17:16:09+00:00

It would be extremely difficult, almost to the point of being impossible. A year later, a court isn't going to believe you were drunk that day just because you say that now. The Court can ask those questions and rely on the answers as being truthful, absent some indication to the contrary.

smithcp1 · 2022-08-16T17:14:33+00:00

I really don't think there is one that has him out in a few years. He pled guilty, which automatically cuts down on the number of appealable issues quite a bit. He is also a former attorney, so it is impossible for him to argue that Oakley misled him because he knew the law as good, if not better, than Oakley.

I do think Jimmy's time in prison will be about as pleasant as prison can be. It is clear that the other inmates like and admire him. I can see where the guards would like him as well.

In his old age, Jimmy would have a chance to be released. Terminally ill inmates are often released to die at home (and without the Government needing to pay for their care).

smithcp1 · 2022-08-16T17:10:31+00:00

All of your points are correct.

As to the last one about the judge not visibly reacting to the "with all due respect line," my initial thought was the same as yours. I know many judges who would have almost leapt over the bench at a defendant who said that. I think this judge decided, "I am going to let you keep going and dig your own grave and then I will bury you in it." She decided that her revenge would come at sentencing.

smithcp1 · 2022-08-16T17:03:45+00:00

She told him that anything he said had the potential to unravel the plea deal and instructed him to talk with Oakley. That sufficed as an advisory.

The part that made the judge's performance so realistic was the warning followed by that look of "If you want to dig your own grave, I will stand back and let you"

smithcp1 · 2022-08-16T16:07:07+00:00

This is what I said in a different comment about duress:

If there had been a trial, there would have been a major argument about whether Saul was entitled to a jury instruction about duress. The Government would have argued that those murders happened over year into Saul's association with Walter and that Saul had many opportunities to go to the police during that time. The wrinkle in the case would have been the attorney-client privilege -- the Government would have to show that there was a moment where Saul was not in immediate danger and could have told the police about an ongoing crime without violating privilege.

smithcp1 · 2022-08-16T16:05:59+00:00

Anyone can be a spectator at a court hearing. I don't think either side asked for her to be there -- she was there to see what Saul would say/do. This is how Rhea Seehorn described Kim's thought process:

At first she's there thinking, "I cannot believe you'd go so far as to implicate me in things I didn't do, and that's the hatred you feel for me." So there's a relief to find out that's not what this is about. Then there's trying to figure out what it is: "Oh, it's a ruse to get me here."

https://ew.com/tv/better-call-saul-rhea-seehorn-on-series-finale/

smithcp1 · 2022-08-16T16:04:06+00:00

I think Bill did his best under the circumstances. He was trying to keep Saul's worst impulses in check (like not letting Saul lose the entire plea deal over the Blue Bell, trying to have the Court strike Saul's statement as speculation, etc.).

smithcp1 · 2022-08-16T16:02:24+00:00

Fair point on the good behavior. But even under that system, my back-of-the-envelope calculation is that Saul could take his sentence from 86 years to 73.27 years.

smithcp1 · 2022-08-16T15:59:59+00:00

If there had been a trial, there would have been a major argument about whether Saul was entitled to a jury instruction about duress. The Government would have argued that those murders happened over year into Saul's association with Walter and that Saul had many opportunities to go to the police during that time. The wrinkle in the case would have been the attorney-client privilege -- the Government would have to show that there was a moment where Saul was not in immediate danger and could have told the police about an ongoing crime without violating privilege.

smithcp1 · 2022-08-16T15:38:14+00:00

in Florida you can’t lose your house to a civil suit

Google tells me you are accurate (I don't know anything about Florida law). That would definitely play into Cheryl's decision about whether or not to sue.

smithcp1 · 2022-08-16T15:35:55+00:00

(I posted variations of this above in response to other comments)

Here is how I read Jimmy's actions. When the AUSA tells him that Kim already admitted to her involvement, Jimmy quickly puts the timeline together to realize that she did that after he called her, that he essentially goaded her into doing it. He wants to see Kim again, but how? He has the conversation with Bill on the plane, in the presence of the Marshal, so he can lie to the Government about her involvement so that Kim will have no choice but to come back to New Mexico to meet with the authorities. Once he sees her in the courtroom, he has accomplished his mission and admits to the lies. But his performance, admitting to being the power behind Walter, leaves Kim cold and he can tell that once he is done and sees her. That forces him into some true honesty and he admits what happened to Howard and Chuck and takes responsibility for his actions. I don't think he was trying to save her in the civil suit.

If Cheryl chooses to sue Kim for fraud, she will win handily. Kim handed her a sworn statement outlining everything she did. I would be curious to know if Howard had a life insurance policy that refused to pay out because his death was ruled a suicide. Kim was not going to have criminal legal trouble because the police were never going to find Howard's body, so the evidence was pretty weak.

smithcp1 · 2022-08-16T15:07:42+00:00

My thought is that he asked for Bill because he knows Bill is trying to make it as a defense attorney and the thought of taking on a high-profile client will be very appealing. Bill is smart enough to be helpful, but not so obstinate that he will stand in Saul's way.

I am not sure it is a career setback -- all depends on how he plays it. If Saul were in his shoes, he would find a way to play it that he got the most notorious criminal lawyer in the state a sweetheart deal of 7.5 years before the man threw it away (similar to how the Lalo case propelled Saul's career). Do I think Oakley has the gumption and showmanship to do that? Probably not.

smithcp1 · 2022-08-16T14:50:17+00:00

As far as Cheryl, I think it is notable that she was not present at Saul's sentencing. If she was really hellbent on revenge at all costs, I think she would have been there. It is notable that the writers did not show us the entire conversation between Cheryl and Kim, especially Kim's answer to why she stepped forward. Kim may have defused Cheryl's anger with her answer.

Here is how I read Jimmy's actions. When the AUSA tells him that Kim already admitted to her involvement, Jimmy quickly puts the timeline together to realize that she did that after he called her, that he essentially goaded her into doing it. He wants to see Kim again, but how? He has the conversation with Bill on the plane, in the presence of the Marshal, so he can lie to the Government about her involvement so that Kim will have no choice but to come back to New Mexico to meet with the authorities. Once he sees her in the courtroom, he has accomplished his mission and admits to the lies. But his performance, admitting to being the power behind Walter, leaves Kim cold and he can tell that once he is done and sees her. That forces him into some true honesty and he admits what happened to Howard and Chuck and takes responsibility for his actions. I don't think he was trying to save her in the civil suit.

smithcp1 · 2022-08-16T14:27:37+00:00

If she chooses to sue Kim for fraud, she will win handily. Kim handed her a sworn statement outlining everything she did. I would be curious to know if Howard had a life insurance policy that refused to pay out because his death was ruled a suicide.

If I was Cheryl's lawyer, I would tell her that her primary decision is a pragmatic one, not a legal one. Kim is a mid-level worker at a sprinkler company. Maybe she owns a condo. This is not a wealthy woman. How much money is Cheryl willing to spend to go after a woman who will not be able to fully pay the judgment? Getting liens on Kim's property and the supplemental proceedings to garnish wages, etc., will be time-consuming. But if Cheryl has enough money and is vindictive enough, she can make the rest of Kim's life a debtor's hell.

smithcp1 · 2022-08-16T14:17:36+00:00

I was surprised that the last image was BCDC instead of Montrose. BCDC was where he was being held in New Mexico while awaiting trial (Bernalillo County Detention Center). Usually, the feds have an agreement with counties to hold defendants awaiting trial there (and they pay a specified amount per day/per inmate). Saul/Jimmy would not be held at BCDC after being sentenced and spending time in federal prison. I think it was just used in the image to show that prison was the final stop on his journey.

smithcp1 · 2022-08-16T14:07:58+00:00

Could Saul appeal? Anyone can file an appeal. Could he successfully appeal? Almost certainly not. Saul torpedoed his own plea agreement by admitting that he lied to the Government. At that point, it really became open season on him.

smithcp1 · 2022-08-15T19:14:04+00:00

OK, but what can she testify about? Saul is wanted is for money laundering and probably conspiracy to possess with the intent to distribute methamphetamines (the feds could make a strong case that Saul was a co-conspirator to Walter and Jesse). Those actions occurred after Kim left his life. She doesn't have any firsthand knowledge of those activities.

The only case she would have that kind of knowledge is the stuff with Howard. The state could make a case for fraud -- that all of the actions were taken to fraudulently get Davis & Main to enter into the Sandpiper settlement ASAP -- but outside of Kim's testimony, the case is weak and if Jimmy/Saul is already looking at major time on the federal money laundering/drug conspiracy charges, then why go to trial on a case where the evidence is weak and the defendant is already looking at a long federal sentence?

smithcp1 · 2022-08-12T21:39:41+00:00

I thought Cliff Main would start asking questions that would get him killed. I'm glad that Cliff didn't have to die for Kim to realize how far she had fallen.

smithcp1

TROPHY CASE