The Rat Paradox Explodes

Mark Bennett, Norm Pattis, Gideon, Shawn MatlockScott Henson and  Malum have all weighed in.  Houston, we have a problem.

While the debate is heated, and the positions are polarized, I see a lot of cross-talk based on a lack of universal definitions.  We may not be as far apart as the record would appear.  Since we have great mutual respect for one another, we should make an effort to avoid the common theme of the criminal defense bar being incapable of agreeing on anything and see whether we can find some common ground.

To this end, I speak for myself when I state:

1.  My “rat” is the guilty criminal who can’t take the weight, so he desires to go to the US Attorney on his knees and give up his brother, mother, BFF, on this or some other offense to buy himself a 5K1.1.   My “rat” is not an innocent, wrongly arrrests, or a witness to a crime giving up information.  In my book, this person can and should cooperate with police, and I will represent him and assist him without reservation.

2.  Despite everything else, I will explain truthfully and accurately the benefits of cooperation to every client, as well as the detriments.  I will not advise them not to cooperate.  In the event that the client decides that cooperation is the direction he wishes to go, I will cooperate fully with a change in counsel and provide new counsel with every assistance possible.  I will simply not be the lawyer who walks into the U.S Attorney’s office with the defendant.  I will do nothing to interfere with the clients choice; I just won’t do it myself.

3.  When we talk about what a lawyer does during the representation of a cooperator, we talk about the client spilling his guts and perhaps even working the street for the agents to set someone else up.  We talk about the client being willing to testify for the government, and being “prepared” by the government to give that testimony.  The sole purpose of this is to obtain a 5K1.1 letter from the U.S. Attorney’s office, which removes the defendant from the clutches of the Sentencing Guidelines.  The more the defendant says, the better his 5K1.1 letter is, and the greater the benefit he achieves.  There is no skill involved.

4.  If no lawyer was willing to represent a cooperator, and defendants sought to cooperate, I might rethink my position that I do not represent cooperators.  Every defendant is entitled to, and needs representation, and if the defendant was unable to obtain representation, I would then feel it incumbent on me to provide it.  However, there are a ton of lawyers willing to take as much money as they can get from defendants to sit in the room and do the crossword puzzle while the defendant rats out his mother.  So, it does not appear that this will ever present a problem, and defendants will have no problem finding a lawyer to represent them during cooperation.

These are the groundrules that I work with.  Are we all on the same page, or are we all at each other’s throats?

Ladies and Gentlemen, what say you?

4 thoughts on “The Rat Paradox Explodes

  1. Matlock

    I have to go with Gideon on this one. It would be nice if at the outset, we all knew exactly who the players were and what they did and what they knew about one another. But all too often, we don’t.

    I guess my problem with all of this is I think we are talking about only one aspect of representing someone who pleads and cooperates. Sure, the 5K1 is great, but there are other ways you can, and in fact should work to effectively represent someone in sentencing.

    While I don’t like the attorneys that sprint to the USA’s office to set up a debriefing before you really know what’s going on in a case, sometimes that is the best scenario for the client. If my client wants to plead and cooperate, then I will set that up and make sure he is prepared for it. I will also do everything I can to ensure his cooperation is given the greatest benefit possible.

    I just think someone who refuses to acknowledge that this is also representing a criminal defendant is just like those attorneys that handle only DWI cases. They’re not playing the whole course.

    Maybe it’s just me, but while there is nothing I enjoy more in the profession than trial, I also like the work involved in preparing the best possible outcome for sentencing.

    Case in point, a client busted with four others charged with 25 kilos of cocaine. Even with the 5K1, he was looking at something like 120 months in the guidelines. He got 60. You can’t tell me that doesn’t take work.

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