The Terrorist Safety Valve

After all the talk about whether terrorists get to enjoy our nation’s “legal niceties” like Miranda, the hard story is that Faisal Shahzad, the so-called Times Square Bomber (but more appropriately called the Fizzler) wouldn’t stop talking.  They could have warned him once an hour, and still the guy would talk.  Miranda, shmiranda.

When he was finally brought in for arraignment before Magistrate Judge George Yanthis, the government disclosed that this guy was a national treasure, giving up all kinds of great information.  He’s the mouth that launched “hundreds of agents in different cities working around the clock” to do critical national security stuff.  Big stuff. 

Now what are they going to do about him?

Shahzad may be brilliant, or just another guy who can’t shut his mouth, but either way, he’s managed to put the government in a jam.  From the New York Times :

It is possible he will continue to cooperate, and ultimately his fate may rest on how his cooperation is viewed. While there is little doubt that the information he provided has helped in the investigation of the attempted bombing, whether his assistance will help him is a different matter, one that has stirred discussion in the legal community.

Ah, cooperation.  The “saving grace” from a grateful government, the answer to every miscreant’s prayers.  No matter how bad your wrong, show the government some serious love and maybe all is forgiven.  Or maybe not.

By waiving his right to a speedy court appearance and, most likely, lacking a formal agreement that a lawyer might have negotiated, he may have undermined any leverage he had, said Anthony S. Barkow, a former federal terrorism prosecutor in Manhattan who now runs a center on criminal law at New York University.

“I think he is doomed,” Mr. Barkow said. “He has confessed to an extraordinarily serious offense that carries with it essentially life in prison.”

Doomed is bad.  If he’s doomed, after showing love the likes of which hasn’t been seen since Sammy “The Bull” Gravano, why then talk to agents?  The point of showing love is to obtain the hotly desired 5K1 letter from the government, the one that informs the judge at sentence that the defendant has provided “substantial assistance” to the government. 

This is the letter that launched a million rats, not to mention the rat-making industry for the criminal defense bar for lawyers who cajoled their paid-up clients to spill the beans on the defendants’ mothers rather than prepared for trial.  Why fight as long as there is someone left to give up to the government?

Not even the rosiest of rat-lawyers would suggest that Faisal will get a medal for the good things he’s given the government.  But then, since his charges carry life in prison, there’s a broad spectrum of reduced sentences available to him.  Will his cooperation serve him well?   Will a sentencing judge, upon reading his good works, reduce his 198 year sentence to 188? 

Of course, Faisal may not be cooperating for the sake of a benefit at sentence.  It’s always possible that a guy who wanted to blow up Times Square on one day wants to fulfill his duty as concerned citizen to the American government by helping to thwart terrorism the next.  People have changes of heart all the time.  At least that’s what they say when they take the witness stand, after they’ve flipped.

It’s not like the government needed Shahzad’s cooperation to make their case.  The evidence, according to government accounts, was overwhelming from the outset, and he was dead before he started talking.

And given the public accounts of evidence against him — including a key to his house found in the vehicle containing a crude bomb — the case against him may have been almost ironclad before he started talking. “Just the fact he was on an airplane trying to leave the country was brutal,” said Joshua L. Dratel, a lawyer who has represented many terrorism defendants.

Josh is one of the handful of lawyers who has done the heavy lifting with terrorism defendants, and he knows when the government’s got someone nailed dead to rights.  The fact that the government didn’t need Shahzad’s confession to convict him, however, doesn’t preclude his providing information about others, and if Shahzad’s information is legit (and not just about a bunch of illegal Taliban immigrants avoiding Arizona), that Shahzad was personally a goner doesn’t mean that he’s not a valued friend of the government when it came to all of his buddies.  And our government has to buy its valued friends.

But if Barkow is right, how does the government convince the next bomber (let’s speculate and call him the Armpit Bomber since shoe and underpants are already taken) to spill his guts?

Gerald L. Shargel, the veteran defense lawyer, said he thought prosecutors would have to offer some sort of benefit to Mr. Shahzad for his cooperation, for reasons that went beyond his case.

“What happens to cooperators is all about message,” Mr. Shargel said. If he received no consideration and was given the penalty of life without the possibility of parole, Mr. Shargel asked how that would be read by the next terrorism suspect who was apprehended. “What motive would that person have to cooperate?” he said.

So what exactly does the government do to grease the tongue of the cooperative terrorist?  There’s always virgins, if you can find some in the Southern District of New York.

8 comments on “The Terrorist Safety Valve

  1. John R.

    Is referring to a lawyer for a rat as a “rat-lawyer” really fair?

    And isn’t at least part of the problem that the odds at trial for a criminal defendant, especially in federal court, are so long that ratting usually seems like a good option? I mean, as long as it gets you something.

    So they have to give you something. I guess it doesn’t have to be much, but that’s a function of the odds at trial.

  2. SHG

    Yes, no, and wrong.  One of the most dangerous myths perpetrated on criminal defendants, nobody wins so everybody should rat.  And rat-lawyers, those who run every defendant over to the US Attorneys office to cooperate after the fee has been fully paid, are complicit in creating and sustaining the myth.  And no, sometimes cooperators get squat.  Most of the time, they are merely thrown a bone for giving away their cherished rights.  But most importantly, how many innocents suffered for this myth, both by cooperating when they were innocent or fabricating allegations against others so that they could cooperate.

    No, John, you are most definitely wrong.

  3. John R.

    What “cherished rights” are those? The right to be tried by a jury? How does that work out, usually?

    The right to have your guilt proven beyond a reasonable doubt? A jailhouse snitch is usually good enough.

    The right not to have to testify with no adverse inference being drawn? Come on.

    Don’t tell me you don’t take all this into account when advising your clients.

    When your client has more or less told you he’s guilty, when they have him on wiretaps and video doing the crime or confessing to it, what are your options? If it’s a drug sale you play the jury nullification argument. Good luck.

    You fight them. Good. Someone has to.

    I won’t countenance fabricating allegations. But the prosecutors are sometimes clueless. Is it a bad thing to help straighten them out if you can? How many innocents are not tried or even charged because the prosecutors got accurate information from a cooperating witness who might otherwise have been a defendant?

    This is a tough business and a lot of tough decisions have to be made. I’m not saying you don’t have a point, but I just think you might be painting with too broad a brush.

  4. SHG

    How does that work out?  For me, pretty damn well.  And even if I don’t make it to trial, I’ll get a better offer because they know that I’m ready, willing and able to do so.  I defend from a position of strength.  It works out pretty damn well.

    Or rat-lawyers can beg for mercy.

  5. Peter Duveen

    Forgive me for my ignorance, but does this man have an attorney? Can we independently verify any of the information about him released by the government? If we cannot, why should we take it at face value? My working assumption is that we know nothing about this case, which is why I have not been paying much attention, even though NPR is making incredible hay out of it. My first question when this chimera hit the press would have been, “Was there an FBI informant involved in the case?”

  6. SHG

    My understanding is that he did not have counsel until arraignment.  Yes, this is (and should be) an issue, unless Shahzad maintains, now that he’s represented, that this was a knowing, intelligent and voluntary decision.  If he does, that’s the end of the issue.

  7. John R.

    It’s almost always impossible to defend from a position of strength. The deck is too stacked. Being ready, willing and able to go to trial has nothing to do with it.

    In my opinion there’s only one way to reliably win for a criminal defendant at trial: you have some evidence that is devastating to the prosecution’s case, you disguise it so that neither the judge nor the prosecutor knows what its significance is, you get it into evidence on some other ground, and you don’t say another word about it until you close.

    But note that to play that game you must appear weaker to your opponents than you actually are. Indeed that is part of the reason it works. You really are defending from a position of strength, but others perceive the opposite.

    And I said only that you can RELIABLY win this way. Even with something like that, it’s not a sure thing, the institutional momentum in favor of conviction being powerful enough to override even the most solid proof coming from a criminal defendant, even as the most laughable evidence will be credited if it comes from the prosecutor.

    Still, I’m glad you get good results being combative from the beginning. If you can reliably win that way that’s great, with one caveat: I don’t believe the adversarial approach applies to anything other than the trial itself. If it comes down to a trial, both sides have to try to win. Outside of that context, two lawyers should be able to discuss the matter sub judice like normal, intelligent and well-informed human beings educated in the relevant law. A power game from beginning to end generally favors the more powerful side – that is, the government, the insurance company, the bank, etc. – in my experience, though I guess yours may be different.

  8. SHG

    John, I don’t know if you’re a criminal defense lawyer, but I don’t think you’ve understood what I’m saying.  It has nothing to do with being combative, though there are times when that’s necessary and we need to be capable of combat when it’s called for.  I’m talking about going into every case with the attitude that I’m going to win, I’m going to find a way to achieve victory.  It’s using every weapon available, turning over every rock, looking for every crack, thinking and rethinking every approach, to find a way to prevail.

    We rarely get cases where the facts are in our favor, or there’s a smoking gun piece of defense evidence.  So what?  That’s not what we do.  We take our cases as we find them, and still do everything possible to win. 

    But if you start out believing that it’s a lost cause, you will certainly prove yourself correct.  The deck is always stacked against us.  That’s why we have to be better than the other side, smarter, faster, more thorough, and always more dedicated.  Being ready, willing and able has everything to do with it.  Being certain that you can’t possibly win is the surest path to losing.

    I hope that you’re not a criminal defense lawyer, because your hopelessness is scary bad.

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