Houston criminal defense lawyer Mark Bennett posts a truism:
“Not a team sport.”
That’s how the federal prosecutor described federal drug defense practice after a hearing in which two colleagues and I had shown a certain unity of purpose on behalf of our clients.
Divide and separate is the name of the game for federal prosecutors (that and, I can bribe witnesses but you can’t). It’s much easier to convict four people when they can be cut out from the herd one at a time. It is often true that “if nobody talks, everybody walks,” but the corollary is that one talker takes everyone else down.
The incentives are built into the federal system to smash any potential cohesiveness of the defense like shards of glass. Whether cooperation or safety valve, the message is save yourself by screwing your co-defendants. Divide and conquer is the prosecution’s strategy. Too many defendants, upon the advice of counsel are only too happy to appease.
This mindset relies on the oft-repeated myth that nobody wins in federal court. It’s a lie. People win. Sometimes it’s a total victory. More often, it’s a partial victory, but a victory far beyond anything gained by flipping and ratting. The ones who rush down to the U.S. Attorneys office to be the first on line when the doors open take the full weight of the government’s claim, from the absurd loss calculations to the plea to the top count. Quick, snitch before the other guy snitches against you. Whatever you do, don’t stick together. Don’t all go down with the ship.
When the defense presents a unified front, not as matter of conspiracy or, as the snot-nosed prosecutor would call it, a team sport, it drives the government nuts. They have come to depend on the defendants rushing to their door. They have come to believe that all they need to do is point a finger and criminal defense lawyers will run, not walk, with their clients to rat out their mothers, fathers, brothers, sisters, wives, husbands, children, grandparents. Trumped up allegations? No problem, somebody will come in to confirm them, if not further them, provided they think they can get a break for it.
Federal drug defense can be an every-man-for-himself venture. If you know that a codefendant will cooperate and convict your client, it often makes sense to beat that codefendant to the debriefing table. The U.S. Attorney’s Office wants it that way.The Government’s advantage is reduced when the defendants and their lawyers coordinate their efforts; when defendants are pointing fingers at each other, the Government just has to sit back and watch as the defendants do the work of convicting each other.
Nobody vavles by telling the government that it’s allegations are wrong, that they blew it, that they’ve got nothing. Sure, the requirement is to come in and fully admit one’s participation. But participation in what? Too many times, the earlier flippers cop out to a crime that never happened, but they have no choice but to agree or they don’t get the benefit. When the hold-outs are later offered deals for a fraction of the time the “early adopters” agreed to, subject only to their prayer for a 5k1 letter, don’t the flippers feel foolish. Of course they do, which is why they’re the first to get on the horn with the lawyers for the hold-outs, asking what can be done to bail them out of the mess they’re in. Nothing is the answer. They made their bed.
But federal drug defense can be a team effort. This is most obvious in the “nobody talks, everybody walks” case or where more than one defendant makes it to trial, but it is also true where the Government has everyone on the hook. Even if everyone is looking for the benefit of a 5K1, lawyers who work well together can coordinate to make the 5K1 pie bigger for everyone without prejudicing anyone. It requires communication and trust among criminal defense lawyers who are lone wolves by nature.
Nobody suggests that cooperation or plea is never the answer. Nobody suggests that every case demands a battle royale. What is suggested is that the alternative, that its always a race to the U.S. Attorney’s office, is similarly not always the answer. Slow down. Think first. Get the Rule 16 discovery. Talk to co-counsel. Maybe the chain won’t have a weak link, and it will hold firm.
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I’ve been thinking about this post a lot today, and I agree with the general idea that if everyone didn’t rush to cooperate out of the often irrational fear that if they don’t, they’re cooked, everyone would be better off. In some ways, its a classic game theory prisoner’s dilemna, but I’m curious about the ethical implications of such a strategy where the positive outcome for one’s own client is dependent on a co-defendant keeping his word with respect to a sort of mutual non-agression pact. Not saying there’s anything wrong with it, just that it seems a very difficult path to navigate.
It has to be a situation where the only way to win is if everyone sticks together and the government is depending on you not doing that. The government’s whole case, or most of it, relies on division of the accused parties. I had a case like this in state court a few years ago. If the accuseds had stuck together, the state had nothing. My guy was the most culpable and needed the cooperation of the other accused. The state had noting without at least one snitch. The state offered the others real sweet deals and they took them. My guy went down for 10 years. I consider the other attorneys to be trial chickens, but that’s me. The other guys got probation, violated and all did prison time. None would have had we stuck together.
Bingo
There’s very little in criminal defense that isn’t a difficult path to navigate, if you’re going to do it well.
The first time I saw the scant paperwork a defense lawyer receives at arraignement, compared to the multiple copies of reports that I’d get in my handy file as an ada, that became abundantly clear to me.
No, it doesn’t have to be such a situation. Read my post. Hell, read Greenfield’s excerpts from my post.
Read the end of the comment, rather than focus on the beginning. I could be mistaken, but I think Don was trying to relate his situation, not to suggest that sticking together wouldn’t be appropriate or helpful otherwise.
I agree with both Mark and you 100%. I think I meant, however, that unless everyone can benefit some how or another, merely sticking together for the sake of it is not beneficial. In the example, all stick together and benefit from the 5K1 equally, or they all stick together and beat the case completely or substantially, or they have to go their separate ways and get the best deal they can. In instances where the first two outcomes are likely with cooperation, attorneys have to get off their egos, they have to talk to one another and their clients, they have to convince the clients that, yes, individually each could benefit, but that they all win the most by sticking together. And they have to man up and have the balls to try the case. In my case, as it would be in most any federal trial, trying the case was going to be painful and time consuming. I was the PD. All the others were SPDs in private practice. Four clients. In the end, everyone lost.
What I got out of the post, and wholly believe, is that prosecutors at all levels know defense attorneys and their clients are easy to divide and conquer. We, as defense attorneys, need to know this, recognize when it is happening, and be damn sure whatever we do is in our clients best interest, particularly when the prosecutor has nothing without a snitch or chicken client/attorney. But sticking together without benefit for all, may not be the best option. I hope I understood Mark’s post and comments.
Best to remember to use the reply button to maintain a cogent thread, Don, rather than post this comment as new. While I’m not sure that the approach, sticking together or divide and conquer, can be defined in such a formulaic way, that was my understanding of your comment.
Obviously, sticking together isn’t the solution in every case, or something to be done merely for the sake of doing it. There must be a benefit to any approach taken. But it’s not necessary that everyone be in the same position, and indeed in larger multi-defendant cases, various groups of defendants are often unrelated and can stick it out even when others flip.
The point is to fight the knee-jerk answer of cooperation. In many cases, perhaps even most, sticking together will provide greater opportunity for success than dividing. This is true even when the case doesn’t go to trial. It’s a question of mindset, where the attorneys refuse to take the easy path and counsel their clients to seek success rather than capitulation because they claim there’s no other choice. The point is that there can be a choice, an excellent choice, provided they think it through and tough it out.
As you example showed, no one benefitted from cooperation. Yet that’s too often the only approach offered to defendants. This has to change if the defense is going to thwart the prosecution’s expectation that anytime they prosecute, the defense can be counted on to make the case for it.