Time to Take a Stand?

A man needs a code to live by. I believe in living according to principles — for example, the principle that humans should be free. Sometimes there are competing principles, and a person who lives according to principle must either rectify them or choose between them. Because humans should be free, humans should fight for freedom.

A principle that competes with humans should fight for freedom is that the guilty should be punished. Some people live by that principle. Both principles have much to recommend them, and some people live by the latter principle, but I choose to live by the former because I know who’s human, but I don’t know who’s guilty.

Government is the enemy of human freedom. So a corollary of the principle that humans should fight for freedom is that humans should fight the government. When one human helps the government, he makes the government more powerful and therefore makes another human less free.

The federal criminal system of trading information for freedom is repugnant to my principles. When a person helps the government make a case against someone else, I see him climbing out of a hole that he dug for himself by stepping on the heads of others who are no more guilty than him.

Yet, despite my principles, I have helped many people in federal court trade information for freedom. Why? Because I have viewed this as a game that needed to be played for my clients’ sakes — a necessary evil.

But a necessary evil is still evil, and by playing the game I perpetuate it.

I am a trial lawyer by training and by nature. I was born to stand up in court and fight the government. A lot of people have put a lot of energy into making me into a better trial lawyer. I have spent countless hours honing my craft so that I can make it more difficult for the government to take away human freedom, not easier.

There are lawyers who hold themselves out as being able to get the lowest sentences through cooperation. I have never been one of those. I’ve had clients get good results through cooperation, but I’ve always viewed it as more a function of their ability to please their governmental masters than of my own skill.

If there is talent involved in acquiring a 5K1, I don’t see it, and I certainly don’t have it. Hard as it is for me to believe, I have to leave room for the possibility that there are art and science to representing cooperators; if so, I haven’t studied them, and I don’t intend to start.

So I’m seriously considering a new personal policy against cooperation with the government in federal cases.
I would write into my contract a provision that my fee did not include cooperation, and that the client would have to seek other counsel to assist them with cooperation.

I would help those clients I have now cooperate with the government if we decided that it was in their best interest.

I would also remove myself from the CJA list, because appointed counsel can’t have scruples against doing anything within the rules to help their clients.

I’ve been trying to work out the downside of this plan. I won’t get as many federal clients (because fighting the feds is not for everyone); that’s okay with me — I don’t have to represent everyone. I can’t think of any harm that it would cause anyone, and it sure would be in better keeping with my principles.

Your thoughts?

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0 responses to “Time to Take a Stand?”

  1. I love the idea. I think you’d have a lot of people seek you out and the word would spread that you were the lawyer who’s taking a stand.

  2. I agree with your stand and as a public defender I remind my clients that in prison “snitches get stitches.” While I do not have the luxury of deny representation, I am happy to say that I have not yet run into the problem of having a cooperating witness.

  3. I too assume there must be something in a lawyer’s make-up that allows him to be better at representing cooperators, though I haven’t a clue what it is.

    The only thing I am sure of is that some lawyers, myself included, lack that certain something and, when a defendant seeks to cooperate, is not well served by my being his lawyer. I can’t seem to manage appeasing the government well. When that is the direction a client chooses to take, I urge them to find a lawyer better suited to their goal. It’s not me.

  4. Gideon,

    Talk to me about that. Is it unfair for a lawyer to refuse to do something he considers unethical, if the client has hired him with a full understanding of the system and the lawyer’s position?

  5. It seems that you are limiting your potential clientele quite narrowly. I agree with you, that I would much rather be trying a case than pleading one out. It’s what I’ve been trained to do. (By some of the same people as you I imagine.)

    But what happens when you take a client, and you and he/ she are preparing for trial, and then at the last minute “the call” comes? That notorious Friday afternoon call? Are you going to try to beg off the case if your client wants to take it? It seems that you are potentially painting yourself into a corner. At that point I would agree with Gideon that you are limiting your client’s options.

    Isn’t it Greenfield that is always talking about how it is isn’t about the lawyer, but rather all about the client? Where is he on this?

  6. Matlock makes part of my point. You can never predict what may happen during the representation. What if a client comes to you Mark for representation and during trial preparation, the government offers to dismiss the indictment, or let him plead to a misdemeanor if he cooperates? (Don’t we all wish?)

    Obviously I assume your answer is that there would be exceptions to your policy.

    Additionally, right now I’m dealing with several clients who were duped into some mortgage fraud. They let someone use their social security numbers in return for a piece of certain properties.

    Turns out the “main guy” committed fraud and these guys, while having some exposure for their involvement, are really conduits for the government to build a case against him.

    They’ve been asked to come in and give statements. Would you turn down this representation?

    I agree the mountain of cooperation is something for the defense bar to weigh seriously, and there are those lawyers, like you, who have gone the route of not representing cooperators.

    I think though that in the realm of doing what’s in your client’s best interest, when you’ve entered into that representation and things change, or some “little guy” comes in who “really didn’t do anything wrong” and wants you to help them cooperate, you have to have room for exceptions.

    I congratulate you on this thought process. I often wonder why it seems the government is the only side of this process that seems to take a unified stand.

  7. To make this work, everybody has to agree. If there are 5 co-defendants, but you are the only attorney acting on this principle, then four guys get the deal and your guy gets the shaft. Lonely road, that.

    I remember many cases when I was a prosecutor (state not federal) where all or most of the co-defendants would have gotten off if they hadn’t ALL RATTED EACH OTHER OUT!

  8. I remember many cases when I was a prosecutor (state not federal) where all or most of the co-defendants would have gotten off if they hadn’t ALL RATTED EACH OTHER OUT!

    Ah. I remember a 26 defendant conspiracy with 2 years of wires, where we held them together and only 1 defendant took a bullet for a small amount of coke he had on him when he was arrested. Ah, the days before rats.

    So Young Shawn wants to know where I stand. Here’s the deal. Like Bennett, I don’t represent snitches. But understand that I define snitches as people selling out their mothers to buy a few years off the top. I do NOT define snitches as poor dupes in a conspiracy who had no clue what they were getting into. They may not be pristine, but they aren’t nearly guilty enough to take the weight.

    I don’t represent snitches because I believe it to be a blight on society, and because I don’t do it well. I can’t seem to kiss prosecutorial butt when it needs a little love. This just isn’t my way.

    However, I always inform my federal defendants that cooperation is a means of obtaining a 5K1.1, and thereby getting out from under the “advisory” guidelines. I tell them it may their best, and only, chance. I warn them of the pitfalls and problems, and that the government will test them to see if they are trying to pull off a scam (as so many defendant’s think they can do), and then burn them if they do. I give them as accurate and truthful information as I can about cooperation.

    I tell them that the first guy to run to the prosecutor has more to sell than the last guy, and that many lawyers push their clients to snitch in federal cases (and that’s all they do), so the naive belief that their brothers will hang tough may be wrong and have serious consequences. But the choice, like the decision to take a plea, is always theirs.

    If they want to cooperate, I will initiate the contact (just to make sure that the avenue is open to them). Once done, I advise them (as they are always advised in the beginning) that they must obtain new counsel to handle the cooperation.

    Should they terminate cooperation, or fail to get a 5k1.1 or decide that ratting out your brother for 6 months off that 151 month sentence, then I will be happy to continue my representation. I will never tell anyone if they picked cooperation, or do anything to hamper their ability to obtain the 5k1.1, but I won’t sit there with them as they spill their guts (or vent their spleen) either.

    And that, kids, is the way I handle cooperation. If I’ve left anything out, I’m sure somebody will let me know.

  9. From movie “Scent of a Woman”

    Hoo yah!!!

    Lt. Col. Frank Slade: But not a snitch!!!

    School Dean, Mr. Trask: Excuse me?

    Lt. Col Frank Slade: No I don’t think I will. Mr. Trask, this is such a crock of shit.

    School Dean: Please watch your language Mr Slade you are in a Baird school not a barracks. Mr. Simms I will give you one final opportunity.

    Lt. Col Slade: Mr. Simms doesn’t want it, he doesn’t need to be labeled not worthy of being a Baird man. What the hell is that, what is your motto here?
    Boys inform on your class mates save your hide, nothing short of that we’re gonna burn you at the stake?
    Well gentlemen!! When the shit hits the fan some guys run and some guys stay. Here’s Charlie facing the fire and there’s George hiding in big daddy’s pocket and what are you doing? Your gonna reward George and destroy Charlie.

    School Dean: Are you finished Mr. Slade?

    Lt. Col Slade: No I am just getting warmed up. I don’t know who went to this place William Howard Taft, William Jennings Bryant, William Tell — whoever, their spirit is dead, if they ever had one it’s gone. You are building a rat ship here, a vessel for sea going snitches and if you think your preparing these minnows for manhood you better think again, because I say you are killing the very spirit this institution proclaims it instills. What a sham. What kind of a show are you guys putting on today? I mean the only class in this act is sitting next to me and I’m here to tell you this boys soul is intact it’s non negotiable, know how I know someone here and I’m not gonna say who, offered to buy it only Charlie here wasn’t selling.

    School Dean: Sir, you are out of order.

    Lt. Col Slade: Out of order, I’ll show you out of order. You don’t know what out of order is, Mr. Trask. I’d show you, but I’m too old, I’m too tired, I’m too fuckin’ blind. If I were the man I was five years ago, I’d take a FLAMETHROWER to this place! Out of order? Who the hell do you think you’re talkin’ to? I’ve been around, you know? There was a time I could see. And I have seen. Boys like these, younger than these, their arms torn out, their legs ripped off. But there isn’t nothing like the sight of an amputated spirit. There is no prosthetic for that. You think you’re merely sending this splendid foot soldier back home to Oregon with his tail between his legs, but I say you are… executing his soul! And why? Because he’s not a Bairdman. Bairdmen. You hurt this boy, you’re gonna be Baird bums, the lot of ya. And Harry, Jimmy, Trent, wherever you are out there, FUCK YOU TOO!

    School Dean: Stand down Mr. Slade.

    Lt. Col Slade: I’m not finished as I came in here I heard those words “cradle of leadership” well when the bough breaks the cradle will fall and it has fallen here, it has fallen!! Makers of men, creators of leaders, be careful of what kind of leaders your producing here. I don’t know if Charlie’s silence here is right or wrong. I’m not a judge or jury, but I can tell you this, he won’t sell anybody out to buy his future and that my friends is called integrity. That’s called courage. Now that’s that stuff leaders should be made of. Now I have come to the crossroads in my life I always knew what the right path was without exception I knew but I never took it. You know why? It was too damn hard. Now here’s Charlie. He has come to the crossroads, he has chosen a path, it’s the right path, it’s a path made of principle and leads to character. Let him continue on his journey. You hold this boy’s future in your hands committee, it’s a valuable future, believe me don’t destroy it, protect it, embrace it, it’s gonna make you proud one day I promise you.

  10. http://www.lidab.com/motions/59accomp.htm
    The Mississippi Supreme Court has warned of:
    “an unholy alliance between con-artist convicts who want to get out of their own cases, law enforcement who [are] running a training ground for snitches over at the county jail, and the prosecutors who are taking what appears to be the easy route, rather than really putting their cases together with solid evidence.” See:
    McNeal v. State, 551 So. 2d 151, 158 n.2 (Miss. 1989).

    The term “snitch” is generally used in two distinct ways: First, simply to signify someone who is “ratting” on a co-indictee; second, someone who is telling a story against another person for his or her own advantage. Thus, the term may include an “accomplice snitch” as well as the “regular snitch.”

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