August 26, 2018

"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... 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.... 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..... 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...."

From "Witnesses ‘flipping’ does corrupt justice. But not because they’re ‘rats'" by (WaPo) by Ken White, a criminal defense lawyer and former federal prosecutor. Here's his podcast, “All the President’s Lawyers” (which I have not yet listened to).

73 comments:

FIDO said...

I love the internal lefty conflict.

He KNOWS that there is rampant prosecutorial abuse in the system, with the DAs blackmailing defendants and since this afflicts People of Color, this obviously is bad.

But to concede this...exonerates Trump and what Cohen is trying to do to him.

So he is trying to square the circle by saying "a lawyer betraying his Presidential Client is okay...but only because 'Trump'.NORMALLY the tactics used by Mueller are bad."


This is not persuasive. The Rule of Law dies in such exceptionalism.

rhhardin said...

If you say this you get X. If you say that you get Y. X-Y is the bribe.

The Crack Emcee said...

"The vast majority of people who confront the choice between cooperation and a longer sentence are poor and uneducated"

And this is one great country.

Ralph L said...

Let's blame Trump for hundreds of years of unscrupulous prosecutors.

Birkel said...

Better jury instructions to reflect the true nature of informants might be best.
Or a rule that requires completely independent corroboration.

Lloyd W. Robertson said...

Advertently and inadvertently, Trump is provoking or triggering some helpful debates. Do Americans have law and order, with people in similar circumstances being treated similarly, or do they have police and prosecutors exercising a huge range of discretion, with inadequate disclosure of exculpatory evidence to the defence? Generally speaking this probably hurts the poor more than the rich; no doubt the poor have a tougher time in the criminal justice system than the rich, other things equal. Perhaps the increase in prosecuting white collar crimes was partly an attempt to address that particular imbalance--or to give the appearance to the public that the imbalance was being addressed. Americans can win a lottery, and enjoy a sudden, unexpected, dare I say unmerited improvement in their condition; or they can be arrested and suffer the opposite. The various versions we have seen of "special prosecutors" in Washington seem especially unfortunate--for political or partisan reasons, they can deliver severe punishment to people who might otherwise have been left in peace; and it is their public service, and only their public service, that attracts the attention of the prosecutor.

FIDO said...

"The vast majority of people who confront the choice between cooperation and a longer sentence are poor and uneducated"

And this is one great country.


I say this, not in response, which is a waste of time, but to ask a question which outlines the stupidity of this comment.

Which nation has NOT taken advantage or been biased against poor stupid people?

France?

Any nation in Africa?

The Middle East?

Asia?

Bueller? Bueller?

Crack goes the Narrative.

rhhardin said...

Reasonable doubt for a reasonable price.

Birkel said...

FIDO,
Good is the enemy of the perfect because of Old Age.
QED

Matt Sablan said...

This is why I say no matter how great the plea deal, if I'm innocent, I'm going to trial, and I think everyone else should too.

Hagar said...

"But most victims aren’t presidential confidants accused of bank fraud..."

And most victims aren’t presidential confidants accused of bank fraud who have been previously investigated for that suspected crime and his infractions found not worth pursuing in court. The agencies involved may have been amiss in not doing a proper audit and administratively assessing fines and severe letters admonishing the culprit, but that is not Manafort's fault.

FIDO said...

I am perfectly happy with Good because I have seen how fucked up idealists get their quest for perfection.

100 million dead and counting.

Chuck said...

FIDO said...
I love the internal lefty conflict.

He KNOWS that there is rampant prosecutorial abuse in the system, with the DAs blackmailing defendants and since this afflicts People of Color, this obviously is bad.

But to concede this...exonerates Trump and what Cohen is trying to do to him.

So he is trying to square the circle by saying "a lawyer betraying his Presidential Client is okay...but only because 'Trump'.NORMALLY the tactics used by Mueller are bad."


This is not persuasive. The Rule of Law dies in such exceptionalism.


Don't be ridiculous. That is such a bad characterization of what Ken White wrote, I cannot even believe that you read it.

What Ken White is saying is that there is an important and nuanced argument to be made against plea deals and immunity tactics, but that Trump is not the guy to make that argument, particularly under these circumstances.

I'm not at all sure that I agree with Ken White, but I could at least have that discussion with him, on the merits of the subject. And in fact, one of Ken White's main points, that our criminal justice system needs more and better funding to protect the rights of the accused with qualified counsel, is irrelevant in the case of Trump confidantes, who all have access to the very best counsel.

Personally, when it comes to Trump I'd have said that he just sounds like an outer-borough mob boss, and leave it at that. Because as everyone understands, if Trump is making a point about criminal justice reform, it is by complete accident. Trump's sole operating mode is transactional shit for his own benefit.

Is Althouse now going to start posting more Trump-skeptic posts? That would be interesting.

Matt Sablan said...
This comment has been removed by the author.
Matt Sablan said...

Does anyone think Podesta -- a presidential confidant who did the same crimes as Manafort but instead got a warning and told to fix his books -- would have been "flipped" by someone investigating Clinton (if she had won)?

Matt Sablan said...

"What Ken White is saying is that there is an important and nuanced argument to be made against plea deals and immunity tactics, but that Trump is not the guy to make that argument, particularly under these circumstances."

-- I don't see why he isn't. We have the very same FBI giving immunity to people in Clinton's orbit who committed the same crimes, and refusing to go after her, but instead, aggressively trying to "flip" people in Trump's orbit, while being run by a bunch of people openly antagonistic towards Trump and defensive of Clinton (even though they've pruned some of the worst.)

This is the perfect example of how deals, plea deals, immunities and other DoJ decisions can can be abused or misused. You may not like Trump -- but the Trump-Clinton prosecution dichotomy is a very harsh light on how screwed up the DoJ and FBI can be.

Ralph L said...

The Clinton minions got immunity.

Unequal justice is worse than questionable tactics.

Matt Sablan said...

"that our criminal justice system needs more and better funding to protect the rights of the accused with qualified counsel, is irrelevant in the case of Trump confidantes, who all have access to the very best counsel."

-- How is more and better funding going to keep a Peter Stzork from sitting on evidence in one investigation while putting the squeeze on people he doesn't like to further the other? It's no different from the racist cop who smashes out a taillight after he pulls over a black driver while letting a white driver speed on by -- the problem isn't funding.

Birkel said...

Matthew Sablan,
I think a Podesta flip was/is as likely as Podesta committing suicide by shooting himself in the back of the head, twice.

Ralph L said...

Don't forget about brother Tony P., the art collector.

Matt Sablan said...

People said the same thing about flipping Cohen before the behemoth of federal prosecution threatened him with jail and bankruptcy.

Matt Sablan said...

(Most famous among the people who said Cohen would never flip? Cohen.)

Birkel said...

Matthew Sablan,
But did Trump threaten Cohen with Arkancide?

Matt Sablan said...

No, but Cohen DID say he'd take a bullet for Trump!

Matt Sablan said...

I assume he was hoping it would be like, a movie bullet, that just hurts you and makes the love interest get all swoony.

readering said...

Ken White blogs and tweets as popehat. (Don't ask why that name, it was originally a collective blog.)

Birkel said...

And that’s the difference.
When the Clintons threaten somebody, that person knows it’s a real threat.
Cohen didn’t believe his own threat.

gcarroll said...

How is this different from waterboarding? It's nothing more than mental torture to get the witness to spill secrets. Threatened with horrible consequences, the witness says whatever it takes to get him/her off the hook true or not. Everyone has been told that torture such as waterboarding does not get the results expected, why does this? - Just asking.

FIDO said...

I am not aware that Trump IS making any huge arguments about the policy of plea deals. But then again, Trump is very busy and that isn't a huge interest of mine.

Nor am I giving any clicks to the WaPo. So no, I read the blurb and still stand by my assessment: DAs using extorting criminal defendants is the opposite of Justice.

To wit: Manafort was examined, investigated, evidence gathered...and the DA of the time decided 'this is no big deal'.

THE JUSTICE SYSTEM LET HIM GO. But without a trial.

What changed the 'egregiousness' of the offense of Manafort that 'suddenly', he needed to face...what was it? Some people are saying he is facing 80 to life in prison.

For lying on a bank loan.

People get less time for MURDER.

So Chuck...what magic thing happened that suddenly, what was considered a waste of everyone's time and money MAGICALLY became 'the worst sort of offense against God and Man'?

The only change in the charge is that he became a gateway to attack Trump...and you are FINE with that kind of distortion of the law.

Pathetic.

Birkel said...

The Clintons threaten with the IRS, FBI, CIA, State Department...
And everybody knows the threat is real.

Matt Sablan said...

I think an interesting reform would be that, after a threshold, the police/federal equivalents closing out an investigation is the equivalent of getting off in a trial. I'm not sure where you put the marker down, but unless there are new charges, this does make me wonder: It technically isn't double jeopardy, but Manafort IS being technically investigated twice for some of the same things. Is this an abuse and constitutional violation, or can the government just string along repeated investigations against someone over and over until they decide to take a first bite of the apple?

I don't think there's anyway to draw a bright line save with a trial, but this seems like a significantly lesser (and less literary) version of Javert's obsession mixed with some fine opportunism.

Matt Sablan said...

Manafort. Cohen. Whichever. Both. It's early. I'm sick, and I'm supposed to be running a D&D session in two hours.

Chuck said...

Matthew Sablan said...
"What Ken White is saying is that there is an important and nuanced argument to be made against plea deals and immunity tactics, but that Trump is not the guy to make that argument, particularly under these circumstances."

-- I don't see why he isn't. We have the very same FBI giving immunity to people in Clinton's orbit who committed the same crimes, and refusing to go after her, but instead, aggressively trying to "flip" people in Trump's orbit, while being run by a bunch of people openly antagonistic towards Trump and defensive of Clinton (even though they've pruned some of the worst.)

This is the perfect example of how deals, plea deals, immunities and other DoJ decisions can can be abused or misused. You may not like Trump -- but the Trump-Clinton prosecution dichotomy is a very harsh light on how screwed up the DoJ and FBI can be.


Matthew, you are usually smarter than that.

"Selective prosecution" is the argument that you are making, and it is a different argument altogether from the question of immunity and plea deals.

You can make the "selective prosecution" argument if you wish, but it has nothing to do with the discrete issues of immunity and plea deals. "Selective prosecution" is also a notoriously shitty, invalid defense to a federal prosecution in any event, just so that you're aware of that too.

To the extent that immunity was granted to Clintons and Clinton aides, you can argue that it shouldn't ever have been granted. But again, you are not making the author's argument. You aren't even making Trump's argument! Because I am not aware of there being any Clinton aides who were so strapped for cash that they couldn't afford a defense, to bogus federal charges, and so had to "flip" and turn on their Clinton Campaign/Foundation superiors. Because that is what Ken White was talking about in an intelligent way, and what Trump was talking about in his idiotic way.


Matt Sablan said...

This isn't just selective prosecution. This is the actual corruption of the prosecutions.

Matt Sablan said...

Also: We'll never know if any Clinton people would have flipped, because they were either never pressured or granted immunities, even after lying to the FBI.

Matt Sablan said...

Which circles back to Trump's point: These aren't deals the DoJ or FBI are making to get justice. They're being used as tools to punish some people they want to punish, while others don't. In the hands of a DoJ/FBI/police force you trust, you probably don't have issues with this sort of power. But when you've got people who are abusing that power, it makes you wonder should they have it at all.

They probably should have some element of this power, but we've seen that it can be abused, and we need to decide what level of abuse is acceptable to risk/have to allow them to do their jobs.

Chuck said...

FIDO said...
I am not aware that Trump IS making any huge arguments about the policy of plea deals. But then again, Trump is very busy and that isn't a huge interest of mine.

Nor am I giving any clicks to the WaPo. So no, I read the blurb and still stand by my assessment: DAs using extorting criminal defendants is the opposite of Justice.

To wit: Manafort was examined, investigated, evidence gathered...and the DA of the time decided 'this is no big deal'.

THE JUSTICE SYSTEM LET HIM GO. But without a trial.

What changed the 'egregiousness' of the offense of Manafort that 'suddenly', he needed to face...what was it? Some people are saying he is facing 80 to life in prison.

For lying on a bank loan.

People get less time for MURDER.

So Chuck...what magic thing happened that suddenly, what was considered a waste of everyone's time and money MAGICALLY became 'the worst sort of offense against God and Man'?

The only change in the charge is that he became a gateway to attack Trump...and you are FINE with that kind of distortion of the law.


You're using "DA" in place of "US Attorney" or the more generic "prosecutor." You're not a lawyer, are you?

I am not aware of all of the details of the Manafort investigation(s) before the recent indictment in the Eastern District of Virginia.

What I know is that in a trial that Manafort's own lawyer called "fair," with a judge who was almost laughably adverse to prosecutors, Manafort was found guilty on eight counts of an 18-count indictment and from what jurors described of their deliberations, just one holdout juror prevented a unanimous verdict on all counts.

Chuck said...

Besides, why are we worried about any plea deal, any immunity, or any "flipping" with Manafort?!? Is Manafort entering into a cooperation agreement with the Department of Justice? That would be news.

Matt Sablan said...

Chuck: The concern is that the entire trial, along with threatening his family and to bankrupt them, was part of the prosecution's efforts to flip Manafort. Which makes sense, since that is the exact same tactic they took with Flynn and Cohen.

Equipment Maintenance said...

I've been saying for a long time that widespread jury nullification is the next big thing. Especially once the progs realize that they can get it organized and effectively insulate their lawlessness.

Wince said...

Wasn't Manafort imprisoned prior to and during trial based on alleged "witness tampering"? But how is what prosecutors do to "flip" witnesses any different, if not a much worse type of witness tampering?


Blogger Chuck said...
Besides, why are we worried about any plea deal, any immunity, or any "flipping" with Manafort?!?

Isn't that how they got Gates to testify against him?

Rick Gates emerges as key for defense as prosecution uses him to build its case in Paul Manafort's trial
Prosecutors are expected to call Paul Manafort's longtime business partner, Rick Gates, to testify in a criminal trial against his former boss. Gates struck a plea deal with Mueller's team in February.
https://www.cnbc.com/2018/08/06/rick-gates-becomes-the-key-witness-in-paul-manaforts-criminal-trial.html

Sebastian said...

"America’s criminal justice system routinely coerces defendants to cooperate and incentivizes them to lie to please prosecutors."

Even if they don't lie, it is nonetheless a corrupt practice.

"But most victims aren’t presidential confidants accused of bank fraud."

Which was used only to get Trump.

Cohen, Trump’s longtime personal lawyer, isn’t atypical just because he’s privileged. He’s also unusual because he knows Trump well."

Actually, he was his lawyer. You know, like, the kind of person you normally trust with secret info, like, privileged stuff.

"Only a civic culture of healthy skepticism of prosecutors’ claims — a genuine appreciation for the concept of reasonable doubt"

Of course. Except with regards to Trump. Then we can trash rules, and pressure attorneys into flipping, and confiscate their records.

"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...."

When did Trump say this? When did he do this "routinely"? All the times he was not showing sympathy for prisoners and shorter sentences? And why does even someone who indirectly makes a point that benefits Trump nonetheless feel the need to spout obvious falsehoods about him?

Anyway, the way plea deals are used in the USA is corrupt, and Mueller's absolute authority corrupts it absolutely.

Trump has every right to make the case against it, since the weaponization of the legal system against a sitting president is unprecedented.

Michael K said...

Chuck stops by to drop several turds.

I am not aware of there being any Clinton aides who were so strapped for cash that they couldn't afford a defense, to bogus federal charges, and so had to "flip" and turn on their Clinton Campaign/Foundation superiors.

No, they all got immunity.

I know about Orange County CA because I lived and practiced there for 40 years. I testified a number of times about trauma cases and in one instance was asked to lie by the prosecutors. The assistant DAs are all ex-cops who went to law school and are very street wise.

I also have a story in one of my books about an affirmative action assistant DA, who knew the defense had continued the case to get him as the prosecutor. He knew it and was pissed. A funny story.

Darkisland said...

There's a 1974 novel that I read 30-40 years ago that I've never been able to get out of my mind. I've never been able to find it again, though I see a couple used copies on Amazon. Unless it is on Kindle, I can't read it.

One Just Man by James Mills

As a novel, it was not bad, as I remember, but not earthshaking either. What has stayed with me over all these years was the concept. Until I read it, I thought plea bargaining was a good thing. Win-win for both sides. After I read it, it's been hard to think that ever again. It could be a good thing, looks good in theory, but as several here have commented, is too often a tool for blackmailing a guilty verdict.

The basic premise is that a public defender in NYC realizes that his clients are being railroaded via plea bargains. He decides that he will force the DA to try all his clients and will mount a vigorous defense. No tickee, no washee and my client walks.

I forget all the plot of the book except that it brings the court system to its knees. It just does not have the resources to deal with all these trials.

It was an interesting education on how the plea bargaining system works.

I am not sure what the answer is. Perhaps supervision of all plea bargains by a judge? Right now, as I understand it, the judge in any case is prohibited from even knowing about a plea bargain. I don't understand why and would think they should but perhaps there are good reasons for them not to.

But perhaps a 2nd judge, not involved with the case?

Or perhaps we should do away with plea bargains altogether. Make everyone go to trial. Make the DA prove Guilt.

John Henry

Narayanan said...

How about this:
Whenever there is immunity to a witness - there should be a trial within the "main" trial when necessary tidbits are brought out and the same jury is simply instructed to render verdict of "immunity" . Do this as many times as needed for all witnesses to be immunity.

Then for the final process the jury instructions can be as currently.

Will any become complicit with the prosecutor?

Darkisland said...

Plea bargaining is a significant part of the criminal justice system in the United States; the vast majority (roughly 90%)[18] of criminal cases in the United States are settled by plea bargain rather than by a jury trial.[19]

Wikipedia

Plea bargaining in the United States is very common; the vast majority of criminal cases in the United States are settled by plea bargain rather than by a jury trial.[1][2] They have also been increasing in frequency—they rose from 84% of federal cases in 1984 to 94% by 2001.[3]

Another Wikipedia article

Seems like the proportions are out of kilter. Plea bargains should perhaps be 10-15% of all cases.

John Henry

Narayanan said...

Amazing things have come to pass in the USA - all because of fateful compromise "Constitution" which openly betrayed the Declaration of Independence to legally and judicially victimize target population - fugitive slave Acts, war to reinstall the compromise!!, Feckless amendments after that failure, Lynchings, children victimized in the name of education ...

And now finally "all shall submit to the Deep State"

cronus titan said...

A striking aspect of the Duke lacrosse hoax is that Nifong acted consistent with prosecutorial culture. THey were not interested in words like justice. They were interested in scalps. Nifong tried like the Dickens to get a player to "flip" but there was nothing to flip about. He really believed (with some justification) that indicting young men in college with a future would force them to make up stories to save their skin. It would have worked but he did not consider that the indictees were in a position to fight back (sound familiar?). Had he attacked poor or middle class kids, it probably would have worked.

Mueller has staffed his office with prosecutors who have been sanctioned in court for misconduct such as concealing evidence. While it is not proven yet, it is consistent with their behavior to threaten wives and children to force a plea and composition of stories. In the world of prosecutors, this is all a resume enhancer. Judge Ellis saw right through them but he could not do anything.

Chuck said...

Screw this. I'm not going to argue an issue of legal complexity with a bunch of non-lawyers. I don't have the time to educate you.

I will say; many of you say that with Trump, you don't care about words or what he says or what he doesn't say. You like actions, and from what you see so far that Trump is a man of action and you like what you see.

And that is how I feel about Robert Mueller.

Narayanan said...

Plea bargain became dominant after economists developed efficiency analysis with *law and economics* openly embraced amorality.

James Buchanan was surprised his *calculus* did not bring about libertarian Utopia

FIDO said...

-You're using "DA" in place of "US Attorney" or the more generic "prosecutor." You're not a lawyer, are you?

Mm. Attempting to poison the well. The only talent you've shown which indicates any kind of attachment to the legal profession on your part, Chuck, is the absolute inability to concede any argument or argue in good faith. But these are not strictly legal skills.


-I am not aware of all of the details of the Manafort investigation(s) before the recent indictment in the Eastern District of Virginia.


Nor are you curious at all IF there might be a miscarriage of justice there. Typical.


-What I know is that in a trial that Manafort's own lawyer called "fair," with a judge who was almost laughably adverse to prosecutors, Manafort was found guilty on eight counts of an 18-count indictment and from what jurors described of their deliberations, just one holdout juror prevented a unanimous verdict on all counts.


A trial can be 'fair' AND motivated almost purely out of political malice.

Which is what we are talking about, you idiot.


Yes, it IS a problem when Selective Prosecution is used BASED ON POLITCS. In fact, we had selective prosecution twice with Manafort. He was just another shyster who lied on a bank loan. Big deal.

Then he became a Trump confidant. And he was prosecuted PURELY for that reason. If he was selectively prosecuted because he was Black, Cracked would be ALL OVER that. But a Republican who probably used Supplements and may own a New Age book in his library? String him up!


Meanwhile, Podesta who stole ACTUAL MONEY was given a walk. He knew the right people.

If Chad plowed into Tyrone's car and given immunity from Tyrone going to jail for yelling at Chad, Cracked would be all over THAT too.


Selective prosecution is fun...as long as you have the whip hand, Chuck. It's when you are on the other end of the lash that it becomes a problem.

It should be CLEAR and easily explained as justified. "I gave the guy threatening with a firearm because it was his first offense." "This kid was just a spectator in a bigger crime so he got probation."


"He got immunity because he knows a Clinton" is hard to stomach.


But your imagination can't embody a reality like that because you are a fool. The Clintons are fomenting a lot of hate in this country with these shenanigans.

Narayanan said...

@Chuck ... Popes of Inquisition are ready to welcome you. Looks like law is your religion but Justice is not your Goddess

Robert Cook said...

"Seems like the proportions are out of kilter. Plea bargains should perhaps be 10-15% of all cases."

No. Prosecutors want to compel plea bargains. The do not want to go through the difficult, lengthy, expensive, and risky (because they could lose) efforts of going to trial. It has become SOP to pile as many charges on a defendant as they can come up with, each with its own sentencing parameters, which they thereby use as a club to beat the defendant into submission: "Take a plea deal or, if we go to trial and you are convicted of all these charges, you will spend decades--or your entire life--in prison."

It is a perversion of the system of justice, (as are mandatory sentencing and three strikes laws), and our right to fair trials; the only defendants who have even a fighting chance are those with the financial resources to hire good lawyers and who can pay for experts who can examine the evidence and provide testimony regarding that evidence that may counter or put into doubt the testimony of experts called by the prosecution.

Michael K said...

I'm not going to argue an issue of legal complexity with a bunch of non-lawyers. I don't have the time to educate you.

Chuck does not deign to discuss justice with us uneducated boobs.

He's cheering on Mueller with his roster of Democrat corrupt pols given immunity.

I'm sure he is not interested in Cleta Mitchell and her criticism on the kangaroo court run by Mueller.

The point here is that if Mueller is interested in unreported and excessive contributions to a 2016 presidential campaign, he can certainly accomplish that objective on a much grander scale in both the amounts involved and the scope of the conspiracy by turning his attention to the $84 million that flowed through the DNC in their massive scheme to completely evade the legal contribution limits to the Clinton campaign. Their misconduct is laid out quite specifically in a federal civil suit filed in May 2018 (Committee to Defend the President v. Federal Election Commission), making Mueller’s job fairly straightforward.

Nah. Chuck isn't interested in that stuff. After all, it won't bring down Trump will it ?


mccullough said...

Ken White is a bad name for a prosecutor. It gives away the game right off the bat.

“Members of the jury, good morning. My name is Ken White and I represent the government in this case.” The black defendants must have hung their heads after that.

All private defense lawyers are named Mr. Green.

JAORE said...

I think an interesting reform would be that, after a threshold, the police/federal equivalents closing out an investigation is the equivalent of getting off in a trial.

Worked for Hillary now, didn't it?

mccullough said...

How many black men did Ken White prosecute?

Is his wife named Barbie?

Crimso said...

"And that is how I feel about Robert Mueller."

So you're good with his actions in Boston and towards Steven Hatfill?

BAS said...
This comment has been removed by the author.
RigelDog said...

"The vast majority of people who confront the choice between cooperation and a longer sentence are poor and uneducated"

And this is one great country.


I say this, not in response, which is a waste of time, but to ask a question which outlines the stupidity of this comment.

Which nation has NOT taken advantage or been biased against poor stupid people? }}}

My take on this issue, learned through 30 years' experience in the criminal justice system, is that disparate treatment usually arises through disparate positions of power. As in any social system, power rules. Usually poor people have less power, but not always. Sometimes race is a plus factor for whites. Those who are uneducated as to the system, and/or are not smart, usually have little power. The system should be set up to safeguard ALL persons' rights and I think we've got a decent system for that. It can be a lot better, and I did my best to be a scrupulously fair and just part of our system. But I hate seeing a blanket condemnation of "America" based on a recognition that our system can and should improve, because there isn't (to my knowledge) any other country that has achieved something qualitatively "better."

Yancey Ward said...

Just my non-legal opinion- a flipper should only be used if the flipper can lead the prosecutors to actual evidence of which the flipper himself could not have created. That should be a clear standard. If all a flipper has is his oral testimony, then he should be ignored by prosecutors.

RigelDog said...

It has become SOP to pile as many charges on a defendant as they can come up with, each with its own sentencing parameters, which they thereby use as a club to beat the defendant into submission: "Take a plea deal or, if we go to trial and you are convicted of all these charges, you will spend decades--or your entire life--in prison." }}}

There is some merit to this point, although you may be over-stating the motivation behind charging multiple crimes. Let's say that you barely bumped into someone at a bar and they over-reacted and punched you out. You get taken to the hospital and are found to have a broken nose. Police SHOULD charge the assailant with both aggravated and simple assault, even though in this scenario the line between simple and aggravated is a gray area. There's usually no way to know at the beginning of the process what mitigating circumstances may exist so IMO it's fair to charge all offenses that the initial evidence can support.

Birkel said...

RigelDog,

Lesser included charges and all that, but you don't let the jury convict on everything. The jury has to choose and all lesser included charges are dismissed.

The claim here is that prosecutors are charging things as felonies that are normally handled with - at most - fines.

Legitimate question:
If asked on an application what a person will make in a year... and one expects future business dealings to produce significant income... and those things don't materialize as planned... does that make it bank fraud if the person reasonably believed their projection of income was valid?

An aggressive prosecutor throws bank fraud at the person, in that case, despite the fact it's unlikely that a jury would be persuaded to convict, in order to increase the odds of a plea bargain.

Is that fair?

MayBee said...

Plea agreements are only a good deal for the guilty. To those who truly did not commit a crime, they are a travesty.

To use one to accuse someone else of a crime is entrapment of the third party.

It should not be acceptable in a just society. We need reform.

Rigelsen said...

Lawyers sometimes like to pretend that only they can talk about the law. As if the law doesn’t touch everybody, and everyone is expected to understand their obligations underneath it, as “ignorance of the law is no excuse”. Interestingly, this doesn’t apply to judges, prosecutors with their judge-granted absolute immunity or even cops and other government folk with their judge-granted qualified immunity where ignorance of the law does indeed let them get away with flouting it. It seems our obligation under the law has an inverse relationship to how much we should know about the law for our jobs.

I do wish Trump were less gung ho about policing and prosecutorial overreach in other cases. “Tough on crime” doesn’t have to be incompatible with basic principles of liberty, though it’s been practiced as if it were. But, if Trump can create doubt in the general public that the FBI/cops and prosecutors do have your best interests at heart as opposed to their own agenda, that’ll be in service to the liberty agenda.

Darkisland said...

I saw another atticle by this Ken White the othet day and wondered if it ead Popehat.

I read popehat from time to time and the two sound different. I couldn't tell if they wete the same or different ken whites.

Anybody know for certain?

John Henry

Michael K said...


Plea agreements are only a good deal for the guilty. To those who truly did not commit a crime, they are a travesty.


This is where the "prosecutorial discretion" is supposed to come in.

Naturally, there is no sign of this in the war on Trump. I wonder if there will be a big document dump October 1?

Like this one, for example.

The Cohen-travel-mistake almost certainly links the use of FBI and NSA database searches to the intelligence laundry scheme between the Clinton campaign, Fusion GPS, Nellie Ohr and the Christopher Steele Dossier….. washed through the DOJ (Bruce Ohr) and passed on to the FBI (Peter Strzok); and then reconstituted for a FISA surveillance application:

Francisco D said...

"Screw this. I'm not going to argue an issue of legal complexity with a bunch of non-lawyers. I don't have the time to educate you.:

Chuckles, the Insufferably Pompous Ass,

If you were a smart lawyer you would explain things in such a way that us boobs might understand, but you are only smart in your own mind.

Many of us here have far greater educational credentials and achievements than you. Chew on that.

RigelDog said...

The claim here is that prosecutors are charging things as felonies that are normally handled with - at most - fines. }}}

I hate what's going on with the passion of a thousand fiery suns. I hate process crimes, I hate selective prosecution based on anything political (the only "selective prosecution I think makes sense pretty much comes down to the cop on the beat who doesn't arrest every miscreant because s/he has the sense to winnow out the serious stuff). I've read Three Felonies a Day, etc. Criminal law and penalties should be easily understood to relate to common law principles that we all agree on. Civil penalties should be preferred wherever possible. It's a terrifying thing to be pulled into the criminal justice system and our approach should be to minimize the need to do so.

Michael K said...

If you were a smart lawyer you would explain things in such a way that us boobs might understand, but you are only smart in your own mind.

Have you noticed that the more a teacher understands the topic and the deeper the knowledge, the clearer the explanation ?

That's why Richard Feynmann decided to teach Freshman Physics at CalTech. I have his lectures, both audio and written transcripts.

holdfast said...

Cook is mostly right.

But mandatory minimums are the logical response to the perversion of the system by hyper-liberal judges who wouldn’t impose rational sentences for serious crimes. But of course, mandatory minimums are an extremely blunt instrument. On the other hand, they are still better than mob justice and lamp-posts.

Jason said...

Chuck: "Selective prosecution" is also a notoriously shitty, invalid defense to a federal prosecution in any event, just so that you're aware of that too.

Fine. Corrupt lawyers can make that argument while we're hanging them from lamp posts.

Shawn Levasseur said...

Darkisland, yes, those Ken Whites are one and the same. He adds a bit more humor/snark in the blog and his twitter feed than he does elsewhere.

Ann, I don't know if you'd enjoy Ken's "All The President's Lawyers" podcast as it is for a general audience. It may be a bit basic for you. Though his practical knowledge of being a prosecutor and defense attourney in federal courts might bring a perspective that you'd appreciate. I enjoy it.

His other podcast, "Make No Law", is one I like even more. It comes out irregularly, but it's a departure from most podcasts, as instead of being a couple of people chatting about issues of the day, it's a documentary look at historical court cases that deal with First Amendment issues.