Yes, witnesses’ flipping does corrupt justice. But not because they’re ‘rats.’

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Dave70968

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https://www.washingtonpost.com/outl...ory.html?noredirect=on&utm_term=.a407a015fcd1

By Ken White
Ken White, a former federal prosecutor, is a criminal defense lawyer at Brown White and Osborn in Los Angeles. He co-hosts the podcast “All the President’s Lawyers” about the Trump administration’s legal troubles.
August 24 at 6:00 AM

Tom Wolfe said that a liberal is a conservative who’s been arrested. It’s cynical but manifestly true. From Watergate to Iran-contra, from the Plame affair and the trial of Scooter Libby to special counsel Robert Mueller’s investigation, prosecutions of prominent conservatives have always turned staunch law-and-order types into abrupt but vigorous critics of the criminal justice system — at least temporarily. The most recent convert to the criminal defense cause is no less than the president of the United States, Donald Trump.

In a Fox News interview that aired Thursday, Trump, smarting from the betrayal of his former fixer Michael Cohen, decried “flipping” — prosecutors’ familiar tactic of inducing lower-level targets to implicate higher-ups in exchange for a reduced sentence. The president probably had not yet heard that his longtime friend David Pecker, publisher of the National Enquirer, had also reportedly “flipped,” testifying about hush-money payoffs in exchange for immunity. Trump fumed that he’s been watching “flipping” for 30 or 40 years, that defendants who cooperate with the government “make up stories,” that prosecutors can use charges like bank fraud to make defendants say bad things about people like him, that it’s not fair and that “it almost ought to be illegal.”

It was rhetoric you’d expect from some lion of the criminal defense bar, not from the man nominally in charge of the United States Department of Justice. And Trump’s right, but for the wrong 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. Public defenders and other indigent defense attorneys are notoriously, consistently and outrageously underfunded . Pleading guilty and implicating a co-defendant can be the only practical choice when your lawyer lacks the time and resources to mount an effective defense. 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.

Cohen, Trump’s longtime personal lawyer, isn’t atypical just because he’s privileged. He’s also unusual because he knows Trump well. Most defendants face cooperators who are not chummy fraternity brothers or corporate boardroom buddies, but jailhouse snitches notorious for fabricating overheard “confessions.” The American Civil Liberties Union recently sued the district attorney and sheriff in Orange County, Calif., saying they ran a network of professional jailhouse snitches, meticulously tracked by law enforcement but concealed from defense attorneys. Criminal defendants routinely find themselves accused by alleged co-conspirators they don’t even recognize.

[Trump’s real problem is that he obstructed justice, and Mueller can prove it]

The criminal justice system, from petty drug cases to sophisticated grand jury investigations by specially appointed former FBI directors, runs on flipping defendants. If we want fairness for both the cooperating defendants and the people they implicate — if we want faith in the results — we need serious reform. That means thinking about how poverty drives cooperation and digging into our pockets to fund the defense of people we want to jail. But it also means asking tough questions about how the system fails to police itself. There are no reliable methods in place to track repeat cooperators or to ensure that evidence undermining their credibility is turned over to the defense, and very few prosecutors face consequences for withholding information that impeaches their witnesses. A system that cared about reliable cooperator testimony would ensure both.

Fairness also demands that we examine the vast power we’ve given prosecutors, who through unreviewable and usually opaque charging decisions can have even more authority than judges over a defendant’s sentence. Federal prosecutors could flip Cohen because they had broad discretion to charge him with dozens of crimes or none; they alone decided how sweet a deal to offer and how ugly the alternative was. The federal sentencing guidelines contribute to that phenomenon and to prosecutorial power. Few Americans realize that it made little difference that Trump’s former campaign chairman, Paul Manafort, was convicted on only eight of the 18 counts against him — under the strange alchemy of sentencing guidelines, his recommended sentence may not be significantly lower than it would have been if he were found guilty on all 18. And by deciding what information to provide to the court and the probation office that drafts the pre-sentence report, prosecutors can further guide the sentencing outcome, further increasing their power to coerce pleas and cooperation.

Most difficult of all, if we want to question our reliance on cooperators, we must be ready to question our very culture. Many of the people calling “witch hunt” today will tomorrow return to familiar law-and-order tropes. The president who decries “flipping” is simultaneously excoriating his opponents for being, as he sees it, soft on crime. Our vision of the criminal justice system is based not on reality, but on Nixonian rhetoric and Dick Wolf’s endlessly televised stories of heroic law enforcers fighting against shifty defense lawyers and sociopathic defendants. In short, flipping works because the culture tells us to trust prosecutors, police and even cooperators uncritically. Only a civic culture of healthy skepticism of prosecutors’ claims — a genuine appreciation for the concept of reasonable doubt — can change that.

But we won’t learn that skepticism from Trump, who routinely proclaims that the law protects criminals too much and that police should stop being gentle with them. His concern reaches only as far as his own skin and his own confederates. Serious criminal justice reform won’t come from partisan controversy. Today’s posturing critics of the system will vanish tomorrow. Only a bipartisan commitment to justice, fairness and the rule of law will protect anyone — let alone the president — from abuse of cooperation.

Defense lawyers like me aren’t holding our breaths.

Twitter: @Popehat

Ken (Popehat) is always a good read, and worth contemplating.
 

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We cheer for stuff unless it negatively affects “our guy”...then it sucks and is a “threat to democracy “.

We decry certain practices as evil and a threat to democracy, unless “our guy” does/did/is doing it...then it is righteousness in the name of freedom!
 

dennishoddy

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America’s criminal justice system routinely coerces defendants to cooperate and incentivizes them to lie to please prosecutors. .​
That's called composing. Then they get a home in Phoenix under the witness protection program paid for by taxpayers so the procecutor gets another notch in his belt.
Meanwhile the person that has been composed against goes to jail. Perhaps we should call it like it is....purgery. The defense will scream about it, but the prosecutor will walk away with a conviction. It may be overturned later like some of the folks mueller has on his team that have been reversed by SCOTUS 9-0. But that doesn't count in the legal world of wins and losses. Win at all costs. Bob Macy.....
If I remember right, and I heard something about this on the news today that at one time, offering a criminal that may have killed 15 or so people in a gruesome manner was given immunity and the witness protection program to get the Teflon Don on whatever it was he was convicted of. Tax evasion?
A lower court called that bribery at one time, and the Supreme Court finally did overturn it .
This entire Mueller witch hunt cannot find any russian collusion so now they are going for his political and business associates in any attempt to find the tiniest morsel of something. They have nothing, but need something. They can't prove the Russians had an effect on the election, (remember Rob Rosenstein saying that during his announcement of the indictment of the russian hackers? He said the election was NOT changed by the russians) so they are going after everyone that knows, worked for, or are family members of Trump in an effort to make him resign to protect his family and business.
It's so obvious what is going on.
Yet Jeff Sessions is nowhere to be seen. If Sessions had an honorable piece of DNA in his body, he would resign and not force President Trump to fire him. He needs to go. Worthless POS political appointee.
Sessions or his replacement needs to go after actual criminals. Hillary Clinton, and her staff, James Comey, and the rest of the higher echelon in our intelligence agencies that used their positions to actually try and influence the elections by exonerating clinton and then trying to cover it up. It was in the news today that Comey totally lied about the FBI spending sleepless nights pouring over the hundred of thousands of emails on Weiners laptop. They actually did very little work on it, covering 24 hours if I remember right, and then comey comes out and exonerates hillary on national TV which was way above his pay grade to do. It should have taken weeks to completely cover all the data in the emails. There is also speculation that the "missing emails about yoga and Chelsea's wedding have been recovered. Where is Jeff Sessions? That is a sedition crime.
The evidence is all there and been exposed, yet Sessions sits with his thumb in his arse and twiddles his prostate doing nothing. Its his fawking job to prosecute crimes and he is not doing it. Clintons crimes have nothing to do with what he recused himself of. Her crimes are totally different. All out there for all to see, and yet the two tiered justice system in this country won't do a danged thing about it.
When does this stop?
 
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dennishoddy

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When the people start caring enough to pay attention, and to vote these jokers out in the primaries.

And not a moment before.
How do you vote out the swamp? Comey, Clapper, Brennen, Paige, Stroek, and the rest of the hierarchy of the intelligence agencies that were in collusion to change the election? That's criminal actions. They aren't elected.
 

Dave70968

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You change the Senate such that it won't consent to such people holding office.

Yes, I know that's a tall order.

I find the regular threads about revolution more than a little bit amusing. You could shoot every last one of them tomorrow, and it wouldn't even be until the next election cycle before the machine was back in place. Until you change the hearts and minds of We The People, nothing will change to any significant degree.
 

Glocktogo

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Some of the most dishonest and morally corrupt people around work on the law side of the criminal “justice” system. The end always seems to justify the means in ththe pursuit of so-called justice.

There’s a reason I sound like a broken record saying we have a legal system, not a justice system.
 

dennishoddy

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Some of the most dishonest and morally corrupt people around work on the law side of the criminal “justice” system. The end always seems to justify the means in ththe pursuit of so-called justice.

There’s a reason I sound like a broken record saying we have a legal system, not a justice system.
We are beating the same drum. Just look at the number of FBI employees that have been demoted fired or resigned since Trump became the legal President. Had Hillary won, these same folks would have maintained their jobs and status in government.
I lol everytime I quote crimes that bill, or hillary or obama committed that are much worse and the liberals on this forum dismiss them as "they aren't in office anymore, so let forget it" Yet they are indignant when Trump does much less if anything at all?
If they are so indignant why didn't they scream, pound the floor, and post their opposition to crimes in general no matter who's party?
Their one sided political bias is upfront and biased.
At least I've stated in the past that I don't agree with some of Trump's twitter feeds and sometimes cringed when he was speaking during the campaign and afterward.
I can't complain of his results in our financial sector or foreign policy.
 

Glocktogo

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We are beating the same drum. Just look at the number of FBI employees that have been demoted fired or resigned since Trump became the legal President. Had Hillary won, these same folks would have maintained their jobs and status in government.
I lol everytime I quote crimes that bill, or hillary or obama committed that are much worse and the liberals on this forum dismiss them as "they aren't in office anymore, so let forget it" Yet they are indignant when Trump does much less if anything at all?
If they are so indignant why didn't they scream, pound the floor, and post their opposition to crimes in general no matter who's party?
Their one sided political bias is upfront and biased.
At least I've stated in the past that I don't agree with some of Trump's twitter feeds and sometimes cringed when he was speaking during the campaign and afterward.
I can't complain of his results in our financial sector or foreign policy.

I keep waiting to see if anyone will mention the fact that DoJ and FBI defended every alleged crime on Obama’s watch, but both are pretty much openly attacking Trump under his watch.

“Career Professionals” indeed. :rolleyes:
 

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