Mark Bennett (with 2 “T”s), at Defending People, writes that one of the blessings of Texas criminal law is the snitch corroboration rule. The fact that they need a rule about snitches is itself a very sad commentary. So, let’s take a look and use the opportunity to make fun of Texas at the same time.
In the early days of the Clinton administration, the idea of flipping your client (for non-criminal defense lawyers, that means urging your client to become to cooperate with the government and become a confidential information) was unthinkable. Snitches, or rats as they are known in polite society, were the lowest of the low. These were criminals who were not man enough to face the consequences, and hence went crying like little girls at the very thought of paying the consequences for their conduct and were willing to put their brothers and mothers in jail rather than take the weight.
I’m sure everyone remembers Berretta, the TV show with Robert Blake (who never killed anyone. Really!) saying those famous words, “If you can’t do the time, don’t do the crime.” Well, that was about as effective as Nancy Reagan saying, “Just say no”.
One day, there was a rush to the courthouse door, with snitches and their snitch lawyers pushing and shoving to be the first one to get to the US Attorney to flip. Bear in mind, there was no god-given right to be accepted as a rat. Last man there was the one to get screwed, because he had nobody left to snitch on. There would be a room full of snitches and snitch lawyers, all with there hands raised, yelling “I was here first” and “I’m the biggest rat” and “Me! Me! Let me rat first!”
It was a train moving full speed, wiping out any chance of beating an indictment. It was the domino theory of snitches. But most importantly, it was drive by the defense lawyers. A coterie of criminal defense lawyers would take their fees and then run over to the US Attorney’s office like good little errand boys to serve up their clients on a silver platter. Ah, those were heady days, when a lawyer could grab a decent fee, do little to no work and give their client (and everyone their client ever knew) up without breaking a sweat.
Soon, the very idea of going to trial was almost an anachronism. For some older lawyers, including yours truly, for whom flipping was neither a panacea nor a means to a quick buck, we were disgusted. We watched this shameful conduct, trying desperately to hold conspiracy cases together so that we had a chance to win. Only to watch the weak link lawyer go behind our backs to the government and beg to do their bidding.
On those rare occasions when we could keep the group together, we won some stunning victories. It always depended on one factor: who the other lawyers on the case were. If we had real trial lawyers, we had a chance. But real trial lawyers became fewer and farther between. Mind you, they never told their clients when they were retained that the plan was never to win. Oh no, they would talk a good case to get the retainer, but as soon as the wad of cash found its way to their pockets, they would be on line to take a number, just like at the deli counter, to flip their client.
Return to the present: And so today we have rules about snitch corroboration. Snitches have become such an integral and accepted part of criminal law that legislatures have made rules about them. For younger lawyers, they can’t conceive of a time when every conspiracy didn’t have a rat. They similarly can’t conceive of a time when a conspiracy case, the “darling of the prosecution,” was tried and won. Caselaw requires criminal defense lawyers to advise clients that flipping may be the only way to ameliorate the draconian sentences under the federal sentencing guidelines, lest they be guilty of ineffective assistance of counsel.
A good friend and exceptional appellate lawyer, Diarmuid White, used to give a CLE lecture about the ethics of turning a client into a rat. He contended that by doing so, the defense lawyer becomes the government’s enabling butt boy, violating his oath of zealous representation in favor of counseling his client how to be as compliant to the government’s will as possible. He had a point. But then again, he’s an old time lawyer like me, the kind who actually tried to defend their client and win the case. And he’s not from Texas.
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
Two Ts, Greenfield. Two Ts.
We are in agreement about the horrors of snitching. Federal statutes and the guidelines have created a system with ever-greater incentives for people to rat on their friends. It’s downright unAmerican.
I missed the part where you made fun of Texas, which is — as far as I can tell — the only jurisdiction in the US that has made it more difficult for the government to turn one person against another. As you make clear, such a rule is needed elsewhere as well.
I didn’t realize that things had gotten so bad in New York. We Texas lawyers are still trying — and winning — federal conspiracy cases.
Two Ts, Greenfield. Two Ts.
Such juvenile references to female anatomy may be acceptable in Texas, but not in New York.
We are in agreement about the horrors of snitching. Federal statutes and the guidelines have created a system with ever-greater incentives for people to rat on their friends. It’s downright unAmerican.
The incentives are built into the guidelines with 5k1.1, but the decision of a defendant to avail himself of the incentive is a product of the defense counsel, whether by advice or lack of faith.
I missed the part where you made fun of Texas, which is — as far as I can tell — the only jurisdiction in the US that has made it more difficult for the government to turn one person against another. As you make clear, such a rule is needed elsewhere as well.
Holy smokes! I forgot to make fun of Texas. I will correct the oversight soon.
I didn’t realize that things had gotten so bad in New York. We Texas lawyers are still trying — and winning — federal conspiracy cases.
I regret to report that things are indeed that bad in New York. Of course, the prosecutors in the Southern District of New York, as opposed to those who were banished to Texas, are the premier prosecutors in the nation. However, that provides no excuse since the top tier defense lawyers in New York are, of course, the best as well.
That New York lawyers are in such a hurry to plead because the SDNY prosecutors are “premier” sounds like rationalization to me. You and I know that the number of federal prosecutors anywhere who could try a case worth a damn without the deck being stacked in their favor is very small.
People come to Houston to hire trial lawyers. We do have lawyers here who race their clients to the U.S. Attorney’s office, but there are few enough of them that the rest of us know who they are.
That New York lawyers are in such a hurry to plead because the SDNY prosecutors are “premier” sounds like rationalization to me.
I guess that you Texan lawyers have trouble hearing sarcasm when spoken without a drawl.
Seriously, the problem with rat lawyers in New York over the past decade has been horrible, and has had a devastating affect on defendant’s willingness to fight. Tangentially, it has been problematic for those of us who are ready, willing and able to try cases as defendant’s don’t believe anybody wins and that good legal counsel is worth the price. If every case is just going to end in a plea or cooperation, why bother paying for a real trial lawyer. It is, to say the least, disheartening.