Mark Draughn, our Windypundit, may not be a lawyer, but he is one smart cookie. The snitching debate here, and oozing around the blawgosphere, has captured his attention, and he’s decided to take a look from the outside looking in and figure out why, by economic analysis, anybody would want to use a lawyer like Bennett (or me) rather than Pattis.
Windy asks, what’s in it for the client when the lawyer refuses to represents rats? At first blush, it would appear that Norm’s position, that cooperation is one of the weapons in the criminal defense lawyer’s arsenal and it is wrong to refuse to use every resource to help a client, would bring his all the clients. The converse, that any defendant who chooses to be represented by a lawyer who doesn’t do snitches must, be definition, be stupid.
Of course, it doesn’t work out that way, so Windy figures there must be another reason why defendants would choose a no-snitch lawyer. He comes up with two rationales: Signaling and Commitment.
By signaling, Windy means that it’s a way of letting others know that while defendant is facing 30 years, he’s not going to flip. His friends, family and benefactors get the message, and can breathe a sigh of relief.
By commitment, Windy is saying that a defendant has, by virtue of retaining the rat-free lawyer, made a overt commitment to fighting rather than snitching.
I told you Mark is one smart cookie. He’s quite correct, but his theory needs a little bit of tweaking to fit properly. Both signaling and commitment are sides of the same coin. To appreciate how they work, one needs to understand how certain aspects of a defense comes together.
When a defendant is arrested and selects a lawyer known to flip his clients, this will become the strategy of choice for the government. They will hold out the carrot of easy cooperation (but no promises!) to get your client to flip, and similarly use the stick of horrible plea offers and extreme accusations to prevent the defendant from fighting. The government isn’t stupid either.
When snitching is off the table, the tenor of the case is substantially different. They know they’re in for a fight. They know that the lawyer is not going to play dead, but will come in with every other weapon a’blazing. The plea offer will be better, usually far, far better, when the only potential avenues are plea or trial. They will charge the defendant differently when they know they are going to have to actually prove their case at trial, thus reducing the potential sentence.
The government gets no free passes with the no-snitch lawyer. If they blow off discovery or motions, or are sloppy, or deceptive, they stand to get the butt handed to them down the road at trial. Since they know that trial is coming, they have to deal with the defense requests and demands seriously up front. This means that the defendant will have better, harder information earlier, and whatever decisions are subsequently made will be based on real information rather than the prosecutorial hyperbole that the government might otherwise spoon-feed the defense.
But what of others, under Windy’s “signaling” factor? There are two types of “others”, including the other gangsters who will sleep better knowing that a defendant won’t be a rat. The more important “others” are co-defendants. One of the primary impacts of snitching is that one’s co-defendant can almost always do far more harm to your client than the government can. While you’re putting up the fight with the guy in front of you, the guy behind you is stabbing you in the back. One fight can be won. The second front (or back) is the one that brings everyone down.
I posted about a tale of two conspiracies. This was the message. Once the defendants turn rat, the defense comes apart at the seams. When a defendant retains a no-rat lawyer, he signals to his co-defendants that he is in it for the long haul. This means that they don’t need to spend the prosecution watching their backs, and if all of the defendants can hold together and resist the urge to implode the defense, they can fight.
Similarly, the opposite is true. When a defendant hires a lawyer known to have his own coffee-mug at the U.S. Attorney’s office, the foot-race to cooperate first is on. Signaling happens in both directions, and the defendant who wants to fight the charges learns, just as his co-defendant would, that his brother-in-whatever is going to sell him out to save his own skin. What point is there for an innocent defendant to do everything in his power to mount an effective defense if he is certain that his co-defendant will be the star witness against him at trial?
Guilt has little to do with the decision when fear of the unknown is the driving force. We have constructed a system when saving one’s own butt at the expense of others is the primary motivator. Does anyone really doubt that a defendant will fudge a few details if it saves him 30 years in prison? Of course, rarely does snitching result in avoiding prison, but the 30 years may come down to a mere 10. But defendants only learn of that detail at the end of the case, well after they’ve sold their soul.
Windy’s final point is fascinating. By his estimation, the no-rat lawyer would appeal more to the gangster, while the snitch lawyer would appeal more to the white collar defendant. To a large extent, I find that to be true, but for different reasons. Gangsters have a better understanding of the downside of life. They understand that their bling comes from doing bad things, and they don’t cry as much about it when they get pinched. It’s all part of the deal.
White collar defendants are innocent. No matter how much money they stole, or who they hurt, they don’t see how that becomes their fault. But even more than being innocent, they tend to be focused entirely on the bottom line. While they insist on day 1 that they have done nothing wrong and demand that we win, a week later they want to know how to cut their losses. Many just aren’t built for fighting, and when lawyers can’t give them a guarantee as if they were plumbers, and their wives are crying, and the feds just seized their yachts, a sudden urge for finality sweeps over them. The quickest, easiest way to achieve a sense of finality is to snitch. Further, it puts them inside the government, where the AUSA’s where school ties and sensible shoes. They feel more comfortable in these surroundings, as if they are back on the side of truth and justice.
But this need for finality almost always changes soon afterward. Once they come to terms with the fact that they’ve just given up all hope of winning, and that they are going to have to plead guilty and do some time, their smile fades. They become morose. They realize that they have just given their innocence away for free.
Unfortunately, by the time they realize this, it’s too late. The same desperation that drove them into the arms of the government now drives them to find a way out. They grasp at straws. They wonder why all the Republican politicians to whom their campaign contributions were directed no longer answer their phone calls.
They demand (they do a lot of demanding) the lawyer “fix” the mess they’ve made for themselves. But the la
wyer’s been paid. His job is done. The white collar defendant is now firmly and irrevocably a rat. His future is married to the government, and he finds his bride doesn’t love him as much as he hoped. But there’s no divorce. Till death do us part.
Windy asks, what’s in it for the client when the lawyer refuses to represents rats? At first blush, it would appear that Norm’s position, that cooperation is one of the weapons in the criminal defense lawyer’s arsenal and it is wrong to refuse to use every resource to help a client, would bring his all the clients. The converse, that any defendant who chooses to be represented by a lawyer who doesn’t do snitches must, be definition, be stupid.
Of course, it doesn’t work out that way, so Windy figures there must be another reason why defendants would choose a no-snitch lawyer. He comes up with two rationales: Signaling and Commitment.
By signaling, Windy means that it’s a way of letting others know that while defendant is facing 30 years, he’s not going to flip. His friends, family and benefactors get the message, and can breathe a sigh of relief.
By commitment, Windy is saying that a defendant has, by virtue of retaining the rat-free lawyer, made a overt commitment to fighting rather than snitching.
I told you Mark is one smart cookie. He’s quite correct, but his theory needs a little bit of tweaking to fit properly. Both signaling and commitment are sides of the same coin. To appreciate how they work, one needs to understand how certain aspects of a defense comes together.
When a defendant is arrested and selects a lawyer known to flip his clients, this will become the strategy of choice for the government. They will hold out the carrot of easy cooperation (but no promises!) to get your client to flip, and similarly use the stick of horrible plea offers and extreme accusations to prevent the defendant from fighting. The government isn’t stupid either.
When snitching is off the table, the tenor of the case is substantially different. They know they’re in for a fight. They know that the lawyer is not going to play dead, but will come in with every other weapon a’blazing. The plea offer will be better, usually far, far better, when the only potential avenues are plea or trial. They will charge the defendant differently when they know they are going to have to actually prove their case at trial, thus reducing the potential sentence.
The government gets no free passes with the no-snitch lawyer. If they blow off discovery or motions, or are sloppy, or deceptive, they stand to get the butt handed to them down the road at trial. Since they know that trial is coming, they have to deal with the defense requests and demands seriously up front. This means that the defendant will have better, harder information earlier, and whatever decisions are subsequently made will be based on real information rather than the prosecutorial hyperbole that the government might otherwise spoon-feed the defense.
But what of others, under Windy’s “signaling” factor? There are two types of “others”, including the other gangsters who will sleep better knowing that a defendant won’t be a rat. The more important “others” are co-defendants. One of the primary impacts of snitching is that one’s co-defendant can almost always do far more harm to your client than the government can. While you’re putting up the fight with the guy in front of you, the guy behind you is stabbing you in the back. One fight can be won. The second front (or back) is the one that brings everyone down.
I posted about a tale of two conspiracies. This was the message. Once the defendants turn rat, the defense comes apart at the seams. When a defendant retains a no-rat lawyer, he signals to his co-defendants that he is in it for the long haul. This means that they don’t need to spend the prosecution watching their backs, and if all of the defendants can hold together and resist the urge to implode the defense, they can fight.
Similarly, the opposite is true. When a defendant hires a lawyer known to have his own coffee-mug at the U.S. Attorney’s office, the foot-race to cooperate first is on. Signaling happens in both directions, and the defendant who wants to fight the charges learns, just as his co-defendant would, that his brother-in-whatever is going to sell him out to save his own skin. What point is there for an innocent defendant to do everything in his power to mount an effective defense if he is certain that his co-defendant will be the star witness against him at trial?
Guilt has little to do with the decision when fear of the unknown is the driving force. We have constructed a system when saving one’s own butt at the expense of others is the primary motivator. Does anyone really doubt that a defendant will fudge a few details if it saves him 30 years in prison? Of course, rarely does snitching result in avoiding prison, but the 30 years may come down to a mere 10. But defendants only learn of that detail at the end of the case, well after they’ve sold their soul.
Windy’s final point is fascinating. By his estimation, the no-rat lawyer would appeal more to the gangster, while the snitch lawyer would appeal more to the white collar defendant. To a large extent, I find that to be true, but for different reasons. Gangsters have a better understanding of the downside of life. They understand that their bling comes from doing bad things, and they don’t cry as much about it when they get pinched. It’s all part of the deal.
White collar defendants are innocent. No matter how much money they stole, or who they hurt, they don’t see how that becomes their fault. But even more than being innocent, they tend to be focused entirely on the bottom line. While they insist on day 1 that they have done nothing wrong and demand that we win, a week later they want to know how to cut their losses. Many just aren’t built for fighting, and when lawyers can’t give them a guarantee as if they were plumbers, and their wives are crying, and the feds just seized their yachts, a sudden urge for finality sweeps over them. The quickest, easiest way to achieve a sense of finality is to snitch. Further, it puts them inside the government, where the AUSA’s where school ties and sensible shoes. They feel more comfortable in these surroundings, as if they are back on the side of truth and justice.
But this need for finality almost always changes soon afterward. Once they come to terms with the fact that they’ve just given up all hope of winning, and that they are going to have to plead guilty and do some time, their smile fades. They become morose. They realize that they have just given their innocence away for free.
Unfortunately, by the time they realize this, it’s too late. The same desperation that drove them into the arms of the government now drives them to find a way out. They grasp at straws. They wonder why all the Republican politicians to whom their campaign contributions were directed no longer answer their phone calls.
They demand (they do a lot of demanding) the lawyer “fix” the mess they’ve made for themselves. But the la
wyer’s been paid. His job is done. The white collar defendant is now firmly and irrevocably a rat. His future is married to the government, and he finds his bride doesn’t love him as much as he hoped. But there’s no divorce. Till death do us part.
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Famed Los Angeles lawyer Barry Tarlow refuses to represent snitches:
http://goliath.ecnext.com/coms2/gi_0199-5119319/The-ethics-of-cause-lawyering.html
In any event, a lawyer can refuse to represent anyone. So long as he discloses his no-snitch policy to his potential clients, and so long as he does not hold onto the full legal fee if the client changes his mind; then I see no problem with a no-snitch policy.
Some lawyers won’t represent child molesters. There’s nothing wrong with that. Again, though, you can’t assume a representation and then not provide a full service.
Disclosure, disclosure, disclosure.
Disclosure of this position to clients is one the basic principles that both Bennett and I have long adhered to. You will see this many times over on both his blawg as well as here. And, more importantly, the point of this position is only served when the client, and the adversary, is well aware of our position.
An attorney can do whatever the heck he wants. The point is, should he?
That may come down to a very personal question of ethics.
Also, there’s a big picture to consider as well as a little picture. Fenwickian sages like Norm who are scared that they will wind up paying more than their fair share of taxes may feel that a stronger government makes their wives and children safer, but the rest of us don’t have to agree.
If the principle is carefully considered and strongly held and the clients, with full disclosure, are willing to stand on principle with us (or want to hire only us despite the principle), why not?