Ken Lammers started a blogversation (credit to Scott Hensen at Grits for the word) about the black hole of federal court, picked up by WindyPundit after Ken posted this quote:

The bottom line is, if you are charged with a federal crime, you are probably going to go to prison. If you have been charged with a federal crime your first thought should not be whether you are going to go to trial to prove your innocence. And if you are guilty you certainly should not risk going to trial. Your first thought should be how to keep your prison sentence to the absolute minimum. Leave the question of guilt or innocence to the academics. Make sure your sentence is short enough so you can pick up the pieces when you are released.

This came from a promotional article by Geoff Mousseau, who was once an attorney and now a “prison consultant.”  How does one end up a prison consultant?  In Geoff’s case, he had to go through a 15 month course of study at Lompoc federal prison camp, all expenses paid.  Get the idea?

Ken and Windy’s focus on this Mousseau promotion followed my critique of Alan Dershowitz’s Forbes article that suggested the only winning strategy in federal court is to be a rat.  Thanks for that bit of genius, Dersh.  With that kind of defense advice, why not urge the accused to just slit their throat immediately to avoid the rush?

This sort of self-fulfilling, self-defeatist creates the very problem it attempts to exploit.  That others continue to promote it, or even suggest that this is a lost cause, makes my blood boil.  After 25 years of fighting, I have no plans on letting those who are determined to lose spew their own failure as if there’s no hope for anyone else.  Misery loves company, and people like Mousseau are truly miserable.

Let’s understand the basics first.  The government does not prosecute people at random.  They pick people to prosecute because they believe that the people have (a) committed a crime, and (b) there’s evidence to that effect.  In other words, the process of criminal prosecution begins with a choice that heavily favors the government.  It’s supposed to.  This is a good thing.

So it’s only natural that the vast majority of federal prosecutions (or state, for that matter) should end in convictions.  As they should.

But Les Miserables, like Dershowitz and Mousseau, aren’t satisfied with that.  They want every federal defendant to believe that it’s a lost cause.  For Dershowitz, it’s a cause and effect problem, where he’s spent far too long trying to undo his fringe-lefty image cultivated when he was younger and still had testosterone flowing through his body, so that he can now be the mainstream poster-boy for reasonable criminal media commentary.  He’s traded his soul to be accepted by others, and it buys him articles in magazines like Forbes, the Capitalist Tool.  His mother would be so proud.

Mousseau, on the other hand, has a product to sell, and he knows his audience well.  He is his own audience, and there isn’t much for a defrocked lawyer to do after finishing his time in the joint other than to advise incoming prisoners how to avoid doing the mambo with bubba.  By arguing that innocent people have no choice but to take a fall, he’s offering his services to people who want to maintain the facade of innocence in the face of surrender.  It makes his customers feel better about themselves.

There is no doubt whatsoever that defendants plead guilty when they are not.  But the urgings of Dershowitz and Mousseau feed into the sense of despair and failure, telling those who are innocent that they cannot fight, they cannot win, their only hope is to surrender.  So what do innocent people do?  They surrender in the hope that it will cut their losses.  They turn criminal prosecution into a business decision, and suck all integrity from the system.

In contrast, I rail against this expectation of failure.  If every innocent defendant chose to fight rather than give up, the government would have one heck of a problem on its hands.  It thrives on cooperators, people willing to sell their testimony to save a few months off the back end of their sentence.  It survives on fear, because they lack the time, evidence and ability to be put to the test of proving their overblown claims at trial after trial. The government wins because of the fear it has generated in the public, and those who promote this fear enable the government to do so.  They become part of the root cause of injustice.

Fight the fear.  Reject the failure.  And tell those who promote it for their own ends, whether self-aggrandizement or self-promotion, to get lost.  No, every defendant who goes to trial will not win.  But no innocent defendant who cops a plea wins either.  And some defendants who fight will prevail.  If more fight, more will prevail. 

Do not buy into the idea that every defendant in a federal prosecution loses.  It is a lie.  Do not join the chorus that innocent people must plead guilty or rat to save themselves.  It too is a lie.  Do not enable injustice.

Update:  I was barely done posting this before reading Doug Berman’s post about how the NYLJ predicts a surge in white collar prosecutions stemming from the current financial crisis.  After some cute stuff about how law students should take a course in white collar crime to capitalize on this “surge”, Doug posts:

In addition, all corporate attorneys with old business clients now fearing different kinds of legal problems ought to quickly study up on federal sentencing realities.  As regular readers know well, the first executives to run to prosecutors and offer up information are likely the ones (and perhaps the one [sic] ones) who will escape severe consequences when indictments start rolling in.

I’m praying that he’s just kidding, because I refuse to believe that Doug would seriously suggest anything so utterly absurd.