Ken @Popehat White, who is anticipated to have an op-ed in every major newspaper in America by the end of the weekend, writes at WaPo about the president’s condemnation of “flipping” to distinguish the good reasons to hate rats, and the not-so-good reasons.
America’s criminal justice system routinely coerces defendants to cooperate and incentivizes them to lie to please prosecutors. But most victims aren’t presidential confidants accused of bank fraud. The vast majority of people who confront the choice between cooperation and a longer sentence are poor and uneducated. When it comes to jailing our fellow Americans, we have champagne tastes, but when it comes to defending them, a store-brand-soda budget.
The president’s erstwhile personal lawyer, Michael Cohen, flipped on his benefactor. Had Cohen not managed to worm his way into Trump’s sphere, he might have had a brilliant future doing 18b pleas at arraignment and, perhaps, the occasional real estate closing. He wasn’t “poor and uneducated,” which is something of the nature of the people who end up in the dock, not because the system is inherently unfair to the poor and uneducated, but because those tend to be some of the attributes of people who commit crimes, people who get caught.
Nobody likes to say that. Nobody likes to hear that. And it’s not to suggest the backward correlation that people who are poor and uneducated tend to be criminals. Rather, it’s that certain types of criminals who tend to get caught tend to be poor and uneducated. The less poor and uneducated commit their crimes in privacy and escape unscathed.
In fact, flipping on your cohorts can be the only way to avoid the de facto punishment of pretrial detention: In many jurisdictions, defendants plead guilty and cooperate because they cannot afford bail, and they would otherwise languish in jail awaiting trial for many months or even years, whether or not they have a defense.
While this may be more accurately applied to state courts rather than federal courts, the distinction is of little value. In federal court, people don’t flip because they’re languishing in jail awaiting trial. They flip because they’re staring at life plus cancer while the Big Guy, with his fancy lawyer using every tool available because he’s filthy rich, might just walk. And even though they were thrilled to work for the Big Guy before they got busted, and their families dined on the Big Guy’s largesse, and they got to walk around in fur coats and drive shiny cars because of the Big Guy, taking the bullet for him is one step too far.
And the government, which hates them at the take down, loves them when they flip.
The criminal justice system, from petty drug cases to sophisticated grand jury investigations by specially appointed former FBI directors, runs on flipping defendants.
In the days before life plus cancer guidelines, criminal cases were made on substantive evidence. An eyewitness. Fingerprints on the gun. Kilos of drugs seized next to that huge pile of currency wrapped in two rubber bands per $10,000 bundle of hundreds. Now, prosecutions are fueled by the guy who was a lying skeeving scumbag yesterday, but an angel who had an epiphany of conscience today. It’s a miracle!!!
But does this support the thesis as expressed in the headline?
Witnesses ‘flipping’ does corrupt justice. But not because they’re ‘rats.’
Well yes, “flipping” does corrupt justice for the reasons Ken explains. But yes, it is because they’re “rats.” It’s very much because they’re rats, because rats are rats.
Cooperators are defendants. Cooperators are the same people who put their self-interest ahead of your kid’s life. If guilty criminal defendants are evil, cooperators are evil because they’re the exact same people until the moment they turn themselves into rats.
A rat, you see, is that same evil defendant who has no honor as a thief. His co-conspirators were his brothers, until being brothers got in the way of a walk out of a cell. In fact, they could be real-life brothers, or mother and son, or spouses, and still the rat’s gonna rat. Because his love gave you a thrill, but his love won’t pay your bills if he’s doing forever in prison.
The person who loves you so dearly when life is good, then yells at his lawyer to get his butt down to the United States Attorney’s office before somebody else snitches first and sucks all the freedom out of the room, is not doing so because he’s trustworthy. He’s not feeling the regret over his life of self-interest. He has not come to Jesus. He’s a rat and, well, he wants out any way he can get it. Because he’s a rat.
It is not that there aren’t people who decide to cooperate for less cynical reasons. Some will tell the truth, and only the truth, no matter what words their masters feed them as they dangle the 5K1.1 letter just out of reach. Some always had regret, but did what they had to do to survive. Now that their world has come crashing down, they surrender to their feelings and are prepared to right their wrong. No one more deeply feels remorse more than the guy who got nabbed and faces decades in prison.
But how can you tell the good rats from the bad? Most rats aren’t rats because they are truly decent people inside when they aren’t using their earnings from selling horse to buy gold chains. Most rats are rats because they’re rats. They were sociopaths before, and they’re sociopaths now, just with a different gig. They no more care about the law and propriety when serving their government masters than they did when serving their criminal masters. You know what they care about? Themselves. They care about their own asses. And they will do what they have to do to survive because that’s who they are. Rats.
And even when the rat has a law license and works for a guy who believes gold toilets are the height of good taste, he’s still a rat. Because rats are rats. Even the good rats.