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. By Friday, so had Allen Weisselberg, the Trump Organization’s longtome CFO. 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.
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 breath.
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