The Nature of Rats

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.

23 thoughts on “The Nature of Rats

      1. Ross

        Were the tasers and fincuffs photoshopped out of the picture? From the wet shirts, all of the evil sea cops must have been on top of the suspect to make sure he was subdued. I can’t believe the woman on the left is laughing at the plight of poor Flipper.

        1. SHG Post author

          Protip: If I had a clue what this was, I would have fixed it so it worked. But I didn’t, so I didn’t.

  1. Richard Kopf

    SHG,

    Three thoughts:

    1. Ken White’s piece nicely points out the hypocrisy of conservatives, although, to be frank, that is not new news. It could just as easily be directed at liberals but perhaps in a different context.

    2. The thesis that cooperation “corrupts justice”* has not been my experience over the last 25 plus years of watching rats testify mostly in drug cases. By and large, the government gathers together a bunch of rats saying more or less the same thing. Buried therein is frequently, but not always, a grain of truth tending to establish that the target of the cooperation is guilty.**

    3. You know, but perhaps your lay readers don’t, that turning into a rat in the federal system often consigns the rat to a very nasty time in prison. Rats pay a hidden price for being rats. When the shot caller asks for the rat’s papers, its time for the rat to check into protective custody.

    All the best.

    RGK

    * What the fuck does “justice” mean anyway. At least as I see it, justice plays no part in what I do. It’s about law. There is a vast difference between the two. I respectfully suggest that Mr. White, a person I hold in high regard, ought not to suggest to the gullible public that the criminal justice system is about “justice.” He knows better.

    ** I do instruct jurors to gauge the testimony of rats with “greater caution and care” than normal witnesses.

    1. losingtrader

      What the fuck does “justice” mean anyway. At least as I see it, justice plays no part in what I do. It’s about law. There is a vast difference between the two

      Then why do you try to fool everyone with the statute of Lady Justice? Maybe you can get the blindfold adjusted so she’s peeking

    2. Guitardave

      Probably shouldn’t do this…but..a NLM question/comment, (Non-Lawyer-Moron)
      Can we still say “when the law is is correctly applied, justice is served” ?
      I understand that what you “do” is law, but when done correctly its result is “justice”…yes its post hoc, but i’m not sure I’d say “vast” difference…or am i lost in semantics?…or worse?

      ( Judge Kopf or Scott, please don’t waste your time answering this if its too stupid)

      1. Richard Kopf

        Guitardave,

        I think your question is a good one. The rationalization which we cling to as a life raft is that when we do law you do justice. The problem is that not even the best minds that have studied the concept of justice disagree what it is. That is why I am a legal realist as a judge rather than pretending to be a judge who is a scholar of justice. I let the chips fall where they may when applying the law, and leave it to others to decide if I have done justice.

        Let me provide an example. Hypothetically, if a judge allows the death penalty to be carried out, has the judge done justice? And, for the sake of clarity, don’t tell me that you need more facts or that “it depends.”

        All the best.

        RGK

        1. Guitardave

          <"Hypothetically, if a judge allows the death penalty to be carried out, has the judge done justice?"
          OK. I get it!…The judge applied the law. Its the law itself that is either just or unjust….and then, correct me if i'm wrong, we're right back in that gooey place where the popular cultural consensus ..or "will of the people" comes into play. Correct?
          (PS: I had that NLM, knee-jerk response…"how can you say that?!?…'a Judges job has nothing to do with justice'…that's ABSURD!..no wonder the system is so… blah blah blah, blah etc."….its SO easy to be a "lazy thinker", or as our host says, stupid.)
          Thank you, sir.

          1. SHG Post author

            This is one of those things that Judge Kopf and I agree upon completely, but then we’re both hardcore legal realists. In fact, it was the subject of my very first post at SJ.

            1. Guitardave

              I haven’t got that far back yet…but its nice to know that I’m catching up so….(cough)…so fast. When it comes to being a “realist”, i came at it from a different tack….try working on the back of a garbage truck for a few years…better yet, don’t…..just take my word for it….Its about as “real” as it gets.
              Thank you both for tolerating my ineptitude.

  2. losingtrader

    You sound more like Frank Sinatra than a CDL .

    Do you refuse to represent a client who cooperates even if you’re certain he’s telling the truth?

    This isn’t a specific criticism of you because I know other CDL’s who discourage cooperation , but I don’t get how this attitude comports with getting the best result for your client.

      1. losingtrader

        Gee, I had commented on that link and didn’t even remember it was my comment when I first read it. This is scaring me.

        BTW, as we discussed, the mind isn’t the first thing to go.

  3. Peter Goldberger

    While you’re on the subject of “rats in popular culture,” I would not overlook either Frank Zappa, “Templeton” the rat in Charlotte’s Web, or “Rat” in The Wind in the Willows.

      1. Peter Goldberger

        There are more things in heaven and earth, Horatio,
        Than are dreamt of in your philosophy.

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