Tuesday, November 27, 2018

"Mueller should not get to decide whether Manafort is lying"

That's the title of my latest piece in The Hill.  The intro:
Prosecutors call them cooperating witnesses. The rest of the criminal justice system calls them rats, snitches, chivatos, stool pigeons, informants and sapos, just to name a few of the terms. The federal criminal justice system is built on these witnesses. So long as they tell “the truth,” they receive enormous reductions in their sentences. In some cases, sentences for defendants convicted after trial are 500 percent longer than sentences received by those who plead and cooperate with the government.
So it’s no surprise that trials have dropped from almost 20 percent of all cases in the 1980s to less than 3 percent today (with most all the rest of the cases resolving in a plea).  Like the days of Salem witches, even the innocent are racing to plead guilty and to tell the prosecutors what they want to hear in the hopes of avoiding monstrous sentences.
There are many fundamental problems with such a system. One such issue is demonstrated in the Paul Manafort case, where the prosecution team just filed a status report with the court explaining that they have concluded that Manafort is not fulfilling his end of the plea agreement because, they say, he has lied to them during interviews (or as they are called in the system, debriefings). Manafort has said he has answered all of their questions truthfully. This may or may not be true.


Anonymous said...

Hm. I wonder whether thee's anything in the public record that demonstrates whether Paulie is a truth teller or not. You have a valid point, but Manafort not your best example.

earl rogers said...

Read the article in The Guardian. Mueller probably has strong evidence, i.e., phone taps and photographs, to prove Manafort met with WikiLeaks in London before Assaunge released hacked DNC emails, and Manafort denied the meetings during his debriefing.

Crime Pays said...

"... even the innocent are racing to plead guilty and to tell the prosecutors what they want to hear in the hopes of avoiding monstrous sentences."??? Sounds like Trumpian "hyperbole" to me. Por favor.

Anonymous said...

I tell all my innocent clients to plead. Who wants the pressure of taking an innocent person to trial.

Anonymous said...

— Carlos Muñiz, former chief of staff to Attorney General Pam Bondi, is on the list of 11 finalists for three openings on the Florida Supreme Court.
— John Daniel Couriel, a former federal prosecutor and now lawyer with the Kobre & Kim law firm in Miami. He also ran unsuccessfully for House District 114 in 2016 as a Republican.
— Jonathan D. Gerber, chief judge of the 4th District Court of Appeal in West Palm Beach. He was first appointed by then-Republican Gov. Charlie Crist in 2009.
— Jamie Rutland Grosshans, a judge on the 5th District Court of Appeal in Daytona Beach. She was appointed by Gov. Scott earlier this year.
— Jeffrey T. Kuntz, a judge on the 4th District Court of Appeal. Scott appointed him in 2016.
— Bruce Kyle, a circuit judge in the 20th Judicial Circuit in Fort Myers. He also served as a Republican in the Florida House from 1998 to 2006.
— Barbara Lagoa, a judge on the 3rd District Court of Appeal in Miami. She was first appointed by Gov. JebBush in 2006.
— Robert J. Luck, also a judge on the 3rd District Court of Appeal in Miami. Scott appointed him to the court in 2013.
— Timothy D. Osterhaus, a judge on the 1st District Court of Appeal in Tallahassee. The former state Solicitor General was appointed to the court by Scott in 2013.
— Samuel J. Salario Jr., a judge on the 2nd District Court of Appeal in Lakeland. He was appointed by Scott in 2014.
— Anuraag Singhal, a circuit judge in the 17th Judicial Circuit in Fort Lauderdale. He was first appointed by Scott in 2011.
Couriel, Lagoa and Luck will be considered separately for one seat that has to be filled by a resident of the state’s Third Appellate District in South Florida; the other two seats are at-large

Anonymous said...

Headline: Manafort lawyer is said to have briefed Trump attorneys

The arrangement was highly unusual and inflamed tensions with Mueller’s office when prosecutors discovered it after Manafort began cooperating two months ago..


I guess it's only OK when it's the government getting defense strategies from a cooperating party who hasn't yet left a JDA.

Anonymous said...

I would say it's more like the Spanish Inquisition or the House Un-American Activities Committee, than the Salem witch trials, but that's just me.


Anonymous said...


It's not the only one

Anonymous said...

Yeah, the rules are different for the G. They call what Manafort's lawyer did obstruction, they call the AUSAs in Esformes heroes.

Anonymous said...

Your opinion is nothing if not full of bias and half-baked reasoning. One false premise is that the sentence imposed after trial by a judge is not a just sentence because it includes punishment for going to trial. The way our (yours and mine) criminal justicie system actually works is that the judges are supposed to impose a fair sentence after trial, a sentence that merits the crime by an unrepentant offender. The system provides an incentive to plead guilty in the form of acceptance of responsibility credit and by statutory language that states that the sentence should take into account the defendant's recognition and acceptance of their wrongdoing. It views this reduced sentence for guilty please as a discount on what otherwise would be the just sentence that is justified in order to save judicial resources of trial and because repenting is the first step of rehabilitation. You see a "trial tax" but it is actually a "guilty plea discount."

I don't see the "rest of the criminal justice system" using the terms you give to informants and cooperators. I always beg for the day a defense attorney will call an informant or cooperator a "rat" or a "snitch" in a trial, but I've yet to see this. This disparaging language is actually damaging. What would you call the cooperating defendant who helps solve a murder, prevent a terrorist attack, take down a violent criminal gang or shut down a boiler room ripping off elderly investors? There are parts of this city and whole countries in this world where good living is just about impossible because people will not help law enforcement. Intimidation and the culture that sees "ratting" or "snitching" where others see helping solve crimes make helping law enforcement uncool an dangerous. "Don't snitch" is a favor to criminals. Many a many murderers, rapists, corrupt public officials, etc. go unpunished and unchecked because of this type of mentality that you perpetuate in your article. There are thousands of people on our southern border right now trying to get into this country and the safety and prosperity that exists in this country and this criminal justice system is a big reason why. If you do not accept this, talk to a Venezuelan, Honduran or Salvadoran immigrant.

Who decides if Paul Manafort or any cooperator is telling the truth? You are right that under the plea agreements the practice is that the prosecutors do. But does it matter what a prosecutor says about the breaking of a plea agreement if the prosecutor cannot back up their decision with evidence that convinces a judge that the defendant did in fact break is promise. You know in the Manafort case, like in other cases, defense attorneys will have the ability to challenge the prosecutors assertions and they will ask for a reduced sentence over the objections of the prosecutors. The judge will hear both sides and make an informed decision, and since there is no mandatory minimum and the guidelines are advisory, the judge has the power to do what the judge thinks is right. Mueller's team is going to file a brief laying out Manafort's lies in debriefings. What does the judge do if the prosecutor does not convince the judge that the cooperator did in fact lie about a material matter? Is this sentencing much different than any other sentencing situation? If there is an "executor", is it not the judge rather than the prosecutor? Did you factor that into your opinion? In one word, your article is SAD.

Yes, the federal system does function on cooperation. It also happens to be the among the most effective criminal justice systems in the world. There is a lot wrong with it, no doubt about that. Bias, prejudice, rogue acts, some incompetent, misguided and corrupt people working within it, and laws that need to be reformed. However, in my view, just like the case with democracy, it is still better than every other system out there.

Anonymous said...

2:15 - why so personal. Did DOM kick your ass at trial?

Anonymous said...

@2:15 - well said. Well reasoned. I tend to side more with David's line of thinking since much of your view on the trial tax/plea discount seems to overlook the presumption of innocence. But still, nice to see a cogent and well thought out opposition to the views typically expressed here. (as opposed to much of the nonsense typically seen in the comments section)

Anonymous said...

Oh Please! Explain to a federal criminal defendant who gets lucky enough to have a criminal case that ends in -KMM that there is no trial tax.
All sophistry aside, there IS a trial tax in the SDFla.
To quote limited fake Bob Dole, "I know it, you know, the American people know it!"

Anonymous said...

@4:15, the answer is no. But I take your point about the personal tone of some parts of my comment. Now, do you care to comment on the substance?

Unknown said...

Ok, let's talk substance. (and by the way I know DOM didn't kick you're ass because I think you are a judge). Anyway.

1. When DOM talks about the the "trial tax" I don't believe he means just the 3 levels. If you go to trial and lose, you are more likely to get higher loss/drug amount, relevant conduct, role adjustment, etc. See Underestimating the Trial Penalty: An Empirical Analysis of the Federal Trial Penalty and Critique of the Abrams Study
Mississippi Law Journal, Vol. 84, No. 5, 2015

2. I have seen defense lawyers use those words - rat and snitch. I agree with you and think most times it would not be effective. A lot depends on the case and the witness obviously.

I do disagree with your description about how most cooperators work in the context of this discussion. What you described are more aptly called whistleblowers - those helping the police solve crimes. DOM is taking about cooperators who have committed serious crimes themselves and are being leaned on by prosecutors to implicate others and reduce their own exposure.

3. I take your point that the judge (most likely a former prosecutor him or herself) is the ultimate decider. But please recognize the disadvantage that defendants are in when they have to challenge the word or AUSAs and agents. It's definitely an uphill battle. I've seen judges vary downward for cooperation when the AUSa says the help didn't rise to the level for a 5K. I have never seen a judge vary downward when the AUSA alleges the defendant lied during a debriefing.

4. I'm not sure why you say our criminal justice system is the most effective in the world.If by effective you mean putting the most people (overwhelmingly minorities) in prison, you're probably right.

Notwithstanding, there are groups that rank these things and one I've seen recently had the US at number 11 behind the following countries: Sweden, New Zealand, Norway, Denmark, Netherlands, Finland, Canada, UK, Australia and the Republic of Korea.

Hope this helps.

Anonymous said...

You are wrong about the trial tax for the reasons I stated. If the judge hears more about the crime and decides to give a higher sentence, then that is justice is it not? How about the times that judges see the prosecutions case and then decide to give a low sentence because the defendant came off sympathetic?

As far as your Whistle blowers response, are you friggi' kiddin'?! What a poor attempt to distort a point that you cannot overcome. That is so far off of what I described. I am talking about a conspirator who is caught and begins cooperating, such as the patient recruiters who record clinic owners paying them kickbacks (health care fraud) -- see those much? Or the fraudster caught in one boiler room scheme who as part of his cooperation wears a wire to go apply for a job in another boiler room? Or the violent criminal who is caught dead to rights and decides to turn gov't evidence to testify against the rest of the robbery crew (sometimes involving murders)? Or the corrupt business-man caught doing who knows what who then decides to testify against the politician he was paying off. These are the types of cases made by cooperators all the time -- and that is a good thing. If you don't see these types of cases, you don't spend time in federal court. If they are lying, they have to fool the agents and the prosecutor -- who admittedly you may not trust. They then have to get past a cross-examination while the lies are still not exposed. Does this happen, of course it does. But there are many witnesses who have motives to lie and we let them testify, why outlaw cooperators? We believe in our criminal justice system, with the confrontation clause, the right to counsel, notice, and a fair trial, or we do not. It's not perfect or infallible, but I believe in it. I said it is AMONG the most effective, and I stand by that. Next time you take a walk down the street at night downtown or in Brickell and are not worried about being robbed, raped, murdered, kidnapped, or not finding your car when you return, think of this. There is over-incarceration and under-incarceration in our system. The problem is we don't all see it the same way, so what we have is a compromise.