New York is Definitely Different

The world of the New York criminal defense lawyer is very different from that of the Houston criminal defense lawyer; these differences go deeper than just the much greater number of cases that Texas lawyers try to juries. Scott Greenfield, writes about the plea offers mailed to 60 of the 62 alleged Gambino defendants in the Eastern District of New York:

According to the story, the offers ranged from 4 months to 20 years.

Lawyers with the U.S. Attorney's Office in Brooklyn said the plea offers were given to 60 defendants, including most of the high ranked crime family members hit in the 80-count racketeering indictment. Only reputed Gambino soldier Charles Carneglia, 61, and fugitive captain Nicholas Corozzo, 67, who face murder charges, weren't given offers, officials said.

That's to be expected. By taking out the little fish, the government gains leverage in getting the big fish. It's really just a variation on an old joke: Once they've determined who is a whore, they are just dickering over price. The next step will be the tantalizing prospect of cooperation, and a better offer, if only the defendants will give up the big guys.

Why the speed? Because the defendants have yet to retain counsel of their choosing. The feds want to get in there and entice as many defendants as possible to stay with their CJA lawyers, engage in negotiation, hold out the 5K1.1 carrot, before they lawyer up for real. It's not that the CJA lawyers are competent, perhaps even spectacular lawyers, but that they are not married to the ways of the defendants.

Those ways, as Scott describes them, are the ways of "men of honor":

Indulge my rhetorical statements here, since I speak of no one in particular and know nothing about any of the specific individuals involved in this indictment. But there is some history in these alleged organized crime cases that cannot be ignored.

In the old days, the men involved in organized crime believed in certain things, one of which was that they would never turn on their friends. They would take the heat. Do the time. Come out eventually and know that their families were provided for. They would hold up their end of the deal. Their associates, their bosses, would hold up theirs. Quite symbiotic, and one on which you could count.

That changed over time, as do so many of the old ways. Valachi. Gravano, D'Arco, Sessa, Scarpa. Embarrassments all, but a wave of the future. While this made for some fine movie insights, it was the end of honor. To the romantic, the end of honor made them ordinary criminals, unworthy of further interest.

In U.S. District Courts in Texas the Government very rarely makes plea offers carrying specific sentences. "Offers rang[ing] from 4 months to 20 years"? Fuhgeddaboudit. In every district in Texas, (c)(1)(C) pleas -- plea agreements that are binding on the court -- are exceedingly rare.

In Texas, as in New York, we sometimes have defendants who would never turn on their associates. Here, though, it's a matter of self-preservation or -- more often -- of the effective equivalent of "honor": family loyalty.

In New York, if you are an accused trying to get a reduction in your sentence by providing assistance to the government, your refusal to tell the Federal Government about all of cousin Louie's wrongdoing is a deal-breaker. Don't want to rat on him? No 5K1 for you.

In Texas, though, federal prosecutors don't generally have a problem with defendants keeping their mouths shut about their family members. Not ratting on cousin Louie won't buy you a 5K1 in Texas, but it won't stop you from getting a 5K1 if you can otherwise provide substantial assistance to the government.

In other words, federal prosecutors in Texas generally respect a defendant's decision not to bear witness against his brother; there are often "men of honor" on both sides of a criminal case.

Logical Extreme

Something that should cheer those who hold that "The Sun rises and falls on the sole question of the client's interest" and feel that "if serving the client harms another, so be it" . . . .

Here, if the federal government is to be believed, is a lawyer who doesn't just pay lip service to the notion that the client's interests are paramount, but truly "without hestitation and in a moment . . . would sacrifice another for the sake of [his] client."

The Ethics of Snitching 2

Norm Pattis writes about lawyers who won't help people snitch (hat tip to Scott Greenfield); he draws an analogy to the practice of medicine:

I would not consider myself well served by my doctor if he were to announce that a life-saving treatment was available, but that he would not prescribe it because, well, it offends his sensibilities. I want options from my doctor. I want intelligent choices and an assessment of the risks and benefits of my options. Perhaps limping through the rest of my life with one leg would be awkward; but I might prefer that course to death. The choice is mine.

The doctor analogy is interesting because doctors are seldom presented with situations in which they might heal their patients by making other people sick. When they are faced with such situations, they generally don't proceed without consent from the person who will be injured (consider, for example, bone marrow transplants).

When we defenders help our clients cooperate, we may improve their lives, but we make people's lives worse as a direct result of our work. The problem is not that we are helping the government, but that we are hurting other people; despite the fact that the law smiles on defendants who make other people's lives worse, we may refuse to participate.

The truth is that we are sometimes called upon to choose between our own interests and our clients'. If a client wants you to knowingly present false testimony, what do you do? If a client wants you to whack a witness, what do you do? If a client wants you to help him flee before trial, what do you do? Even though perjury, murder, or flight might be in the client's best interest, you wouldn't help him in those ways.

"But," you might say, "those things are illegal."

So what? Contrary to popular belief, we don't give up our souls when we become lawyers. We don't obligate ourselves to permit the government to define right and wrong for us. Some illegal things are ethical, and some legal things are unethical. If we feel something is unethical, we can refuse to do it whether the government approves of it or not.

Two hypotheticals:

First, suppose that the government passes a law saying that a criminal defendant might, by killing a person whom the government deems to have committed a crime, shorten his own sentence. Suppose further that the law provides that a killing in such circumstances is justified. Will you help a client legally murder a drug dealer? Or might you put your own ethics -- your own "vision of yourself" -- first and decline?

Suppose instead that you are opposed to the death penalty, and that a client facing prison has an opportunity, in exchange for the possibility of a lighter sentence, to testify in a trial in which the government seeks to kill a person. Will you help him do so? Or might you put your ethics first and decline to help the government put a person to death?

If your answer is that in one of those scenarios you might choose your own ethics over your client's best interest, but that you wouldn't otherwise refuse to help an accused person cooperate with the government, then we are haggling about the price.

The Ethics of Snitching

I have written a couple of times about a lawyer taking the position that he will not help criminal defendants cooperate with the government in exchange for the possibility of lighter sentences. My contention is that a lawyer who feels that cooperating with the government in exchange for a possible sentence reduction is unethical should, if possible, not help clients do so.

I say "if possible" because some lawyers -- public defenders and others who defend the indigent -- have clients who can't go and hire someone else if they don't like a lawyer's scruples. When a client is compelled to accept a lawyer's representation, the lawyer can't choose to abstain from doing anything legal to help the client. The lawyer is compelled to help despite his scruples.

If snitching -- cooperating with the government in exchange for freedom -- were illegal, then a lawyer helping a client snitch would be violating the law (under a parties theory). If snitching is unethical, then a lawyer voluntarily helping a client snitch is violating his ethics.

Lawyers have written, saying "snitching is not unethical" or "I don't see why snitching is unethical." I think they may be looking in the wrong place for ethical guidance.

Ethics are principles of right and wrong that govern our behavior regardless of the sanction that attaches. Ethics don't depend on possible sanctions; we behave ethically not because we might otherwise be punished, but because we recognize ethical behavior as correct regardless of possible punishment.

Laws attach official sanctions to certain behavior. The Texas Disciplinary Rules of Professional Conduct (as well as disciplinary rules that govern other lawyers, for example) are laws -- there are sanctions attached to lawyers' violations (for the Austinians among you, the "sovereign" is the State Bar).

Something can be illegal without being unethical, or unethical without being illegal. For example, possession of marijuana is illegal, but most people would agree that it is not unethical. Theft is illegal and, most people would say, unethical. Lying is unethical in many situations in which it is not illegal.

There are examples from lawyering as well. Mixing client funds and lawyer funds is not unethical, but it is illegal (according to the disciplinary rules). Revealing client confidences is both illegal and unethical. Having sex with clients is, most lawyers would agree, unethical but (in Texas) it is not illegal.

Ethical principles are highly personal. What I consider unethical, someone else might not. We can't go to the books to determine what is ethical and what is not; the statutes don't tell us, the caselaw doesn't tell us, and the disciplinary rules don't tell us. (We can be thankful for this, since the people who write the statutes, caselaw, and disciplinary rules are often ethically retarded.)

We can learn what is legal and what is not by looking in books. To learn what is ethical and what is not, we have to look within ourselves.