Kopf To Greenfield: You’re An Asshole SJW

Not exactly, but sort of.  As a prelude to his discussion of the responsibilities of criminal defense lawyers toward their clients who snitch, which largely involves keeping them alive, Judge Richard Kopf called out a slice of lawyer:

Before I get to my “tips” on snitches, I have two points.

First, if you are the kind of criminal defense lawyer who says he or she will never represent a snitch then you are probably an asshole unworthy of the designation lawyer, let alone criminal defense lawyer. We have plenty of Social Justice Warriors and not enough criminal defense lawyers to represent people they would otherwise despise.

Some background seems in order. While rats (my preferred epithet) have always been around, the phenomenon of racing to the U.S. Attorney’s office to be the first to snitch didn’t become a “thing” until 1989, after Mistretta, when the federal Sentencing Guidelines were held constitutional, and obviously long before the Supreme Court’s Booker decision, when they announced, “only kidding.”

As a result of the pervasive use of conspiracy to charge what were previously state drug prosecutions in federal court, in combination with the absurdly harsh guidelines sentences, criminal defense lawyers told their clients that nobody wins and they have no choice but to rat if they ever want to see sunlight again. The rush to snitch was on.

The synergy, once started, became a self-fulfilling prophecy. With everybody snitching on everybody else, winning became more difficult, if not impossible. And when defendants ran out of people to snitch on, they had to come up with newer, more imaginative ways to rat. Whether it meant creating crimes that didn’t exist, lying about people they didn’t like, giving up their mothers, it didn’t matter. Federal court became a whirlwind of rats, defendants tripping all over each other in search of the few, the proud, the brave, the defendants who weren’t rats.

But not every criminal defense lawyer decided to get an E-Z-Pass to the rat hole. Some of us decided that there were plenty of other lawyers who were more than happy to go the snitch route, and our services weren’t required.

Bear in mind, when I speak of snitches, I speak of defendants who committed a crime but don’t want to do the time. I am not speaking of innocent defendants who have been wrongfully charged, or non-defendants who witness crimes. That’s different. Rats trade their guilt for someone else’s life.

And so, I decided that I didn’t want to represent rats.  I chose instead to be the lawyer for defendants who wanted to fight their charges. What does that make me?

First, if you are the kind of criminal defense lawyer who says he or she will never represent a snitch then you are probably an asshole unworthy of the designation lawyer, let alone criminal defense lawyer. We have plenty of Social Justice Warriors and not enough criminal defense lawyers to represent people they would otherwise despise.

My choice had nothing to do with social justice, and I’m not at all clear what social justice has to do with it in any event. But does that leave me as Judge Kopf’s “asshole unworthy of the designation lawyer, let along criminal defense lawyer”?

Regardless of anything else, there is a duty to inform defendants that cooperation is an option, and may well be the best, even only, option available for them. They may have no defense. Even if they do, fighting remains a risky business.  Cooperation (which is the government’s word for being a rat) may well prove to be the best option under the circumstances.  I fulfill this duty to my clients, and I do so in a way that doesn’t color my explanation, or influence their decision, against snitching.

In addition to explaining the benefits of being a cooperator, I tell them that I will never violate their privilege, never reveal client confidences, never tell anyone if they decide that they want to play in the government’s sandbox.  My responsibility to the client has nothing to do with whether or not I agree with their decisions. It’s their life.

I also explain the downside to being a rat. That if it gets out that they’re snitching, there is a good chance that they won’t see the end of their shorter-than-they-would-have-gotten sentence because someone will have placed a shiv up their anus.

I tell them that their masterful plan to protect their compadres at the expense of their enemies, so they won’t hurt any friend, may not work, and usually doesn’t.  Lots of defendants think they can outsmart the government, only to find out that the government has heard that tune too many times, and isn’t biting. It’s always amusing when a defendant thinks his mad street skillz are going to let him put one over on the government like he does on some junkie buying horse that’s been stepped on 23 times.

I tell them that their cooperation may not work, meaning they haven’t got enough to give up to earn them the love and adoration of the government. But in the proffer before they get to the good stuff, the government will require them to confess every bad thing they’ve ever done. So there may be no benefit at the end, but they given away all their secrets in the beginning.

I tell them that once they decide to lie down with an AUSA, any lie about their own misdeeds may well be the end of the road. The government typically knows a lot more about them than they realize, and they will test the snitch for truthfulness by seeing whether he admits something they already know, or believe, to be true.

And I tell them that even if everything goes as well as planned, it doesn’t mean they walk out of jail with a hug and a hearty “thank you.” They could just as well end up seeing their 30-year sentence reduced to a 23-year sentence as a gesture of deep appreciation. This is not what they had in mind when they thought they were getting a “get out of jail free” card.

Should they still want to cooperate, I will make the connection necessary for them to make a proffer, tell them to either retain new counsel or ask the government to see that a nice CJA lawyer has someplace to go that day, and wish everyone well. Then, I go back to my office to defend someone who wants to fight.

Maybe I am unworthy of calling myself a criminal defense lawyer. Maybe I am an asshole (at least for this reason, if not many, many others). But I am what I am, and I’m good with it. Calling me names isn’t going to change it.

18 thoughts on “Kopf To Greenfield: You’re An Asshole SJW

  1. REvers

    Do you give them a copy of the script they have to memorize for the government before you tell them to decide?

  2. losingtrader

    Is there an award emblem you can include along with your others on the right side of this site that says, “100 TOP ASSHOLE LAWYERS ?”
    I volunteer to create an emblem that rips off the advertorials for Super Lawyers.

  3. Rick Horowitz

    Times like this, I wish blog posts had “like” buttons, because I have nothing to add.

    Except that I wish I’d written this.

    When I’ve had cases a couple times where I found a co-defendant has made a deal to rat out the others for some allegedly-sweet deal, and is represented by someone I know, I have found myself unable to think of that attorney in quite the same way as I had, going forward. I try to tell myself he is just doing what the client wants, and which gets him some better penal outcome. But I still end up feeling just a twinge of oddness whenever I see him (or her; don’t want to be sexist!) after that.

    1. SHG Post author

      As I’ve said before, you may be ready for the fight with the prosecutor, but it’s co-counsel and knife in the back you never see coming.

  4. rob

    I find it bizarre that you guys will happily defend murderers and rapists but balk at this. Whatever happened to not caring what your client did and just doing the job?

    1. SHG Post author

      What they do before they get to us is one thing. What they do while in our hands is another. We have nothing to do with the first and everything to do with the second.

  5. Richard G. Kopf

    SHG,

    You are not an asshole. I take that back. You aren’t an asshole for your practice regarding snitches. That leaves open the question of whether you are an asshole for other reasons, but I digress.

    I qualified my statement, “First, if you are the kind of criminal defense lawyer who says he or she will never represent a snitch then you are probably an asshole unworthy of the designation lawyer, let alone criminal defense lawyer.” Notice “probably.”

    You aren’t an asshole because you fully explain to your client the risks and benefits. Then, if they decide to “snitch” you do not abandon them. Rather:

    “Should they still want to cooperate, I will make the connection necessary for them to make a proffer, tell them to either retain new counsel or ask the government to see that a nice CJA lawyer has someplace to go that day, and wish everyone well. Then, I go back to my office to defend someone who wants to fight.”

    I’m perfectly OK with what you do, not that you give (or should give) a shit what I think.

    Finally, the SJW reference is to “movement lawyers” who value “the movement” rather than their clients. How many young black men have turned down cooperation agreements because such a lawyer actively lobbied against cooperation for the sake of the movement, rather than giving the client an objective description of his or her options?* The number might surprise your readers.

    All the best.

    Rich Kopf

    *Of course, I have set to one side the lawyers who represent clients but are being paid by the higher echelon to keep the client quiet. That problem is an entirely different kettle of fish.

      1. Bob

        I think Judge Kopf is judicially estopped from denying his earlier characterization of you as an asshole, so congrats.

  6. Austin Collins

    What’s the distinction for you between your oft-posted position that attorneys should place their clients’ best interests over their own feelz, and forcing them to find new counsel in the midst of a process that holds their next few decades in the balance?

    To the extent you instruct them to find other counsel, how often would you estimate would the substitute counsel meet or surpass the ratting-negotiated agreement you would on average achieve?

    Do you communicate to your clients that you will drop them if they rat? If not, how are they making a fully informed decision?

    You communicate a belief that you explain their options in a way that does not reveal your personal biases . I’d be flabbergasted if you’ve never seen through another’s heartfelt attempty at neutrality; it’s a gift the human species has, even the human rats. However, much like the counting horse, or your favorite — police dogs — impressions of your preference come into play regardless of whether you’re genuinely trying to hide them or not. That just circles back to my first question; will be interested to see your response, should you be able.

    (Residing the urge to Gertrude, as I’m not a frequent commenter; please consider my questions on the positive side the tone spectrum)

    1. SHG Post author

      Should I be able? While this might seem like a hard question to you, it’s not.

      Short answer: I tell them before I’m retained that if they want to cooperate, I’m not the right lawyer for them. I tell them before I’m retained that they are free to change their mind at any time, and if they do, I will terminate my representation (and return any unused portion of the fee) and they will have to retain new counsel. Should they retain me, these are the conditions going in, and I include it in my retainer agreement. It’s never been a problem as my clients are fully and truthfully informed from the very beginning. There’s nothing hard about being honest and up front with clients.

      Edit: And as for my mad ratting skillz, I have none. I try cases. Other lawyers are far better at managing snitches than I am, so it’s no loss.

      1. Austin Collins

        My own edit: your presumed reputation for preferring to litigate is its own rat-negotiating skill. Okay, it’s more anews asset than a skill, but the result is functionally indistinguishable.

        1. SHG Post author

          Once they sign that Queen for a Day, it’s all downhill. The govt knows they own the defendant, and my “presumed” rep no longer matters.

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