By David Zapp
There was a time when criminal defense lawyers advised their clients after reviewing the evidence against him. Now some lawyers and “friends” of lawyers simply advise clients before reviewing the evidence to surrender, plead guilty, and cooperate. Some of these clients don’t even have pending charges. They have to plead to informations, informal charges drawn up by the prosecutor, because no charges were ever filed by a grand jury.
These lawyers and friends have reasons for doing what they do, but basically it comes down to money. Sometimes, though, it is for a more altruistic reason, a friend or relative who is in jail and need a “credit” for bringing in a new defendant who himself is often unaware of the ulterior motive.
Some situations resemble Ponzi schemes: one person using someone else’s cooperation for credit, then that person using someone else’s cooperation for his credit until a “victim” of the scheme balks or gets screwed because he has no one to cooperate against and the whole scheme implodes. Usually it is the same lawyer or friend handling the case behind the scenes so as to hold the scheme together. The fact a defendant never knows is that no one gets indicted solely on the word of a convicted drug dealer, but why tell the prospective defendant that? There is no money in it.
Now there is nothing wrong with a drug dealer trying to negotiate his way out of a problem, but first he needs to determine whether he has a problem. He has to speak to an independent lawyer preferably a lawyer from the district where the case is pending, who can function more as an advisor than as an advocate for surrendering.
Now a defendant who intends to surrender should know before he surrenders what to expect because after he surrenders he is at the mercy of a disinterested U.S. government and an even more disinterested prison system. A surrendering defendant, properly advised, should only expect things to get better never worse.
With some United States Attorney’s offices a defendant can negotiate a sentence; it is not binding on the judge because no one can bind a federal judge, but under a certain provision of the Federal Rules, Rule 11, a defendant can withdraw his guilty plea if the judge cannot agree to impose the agreed upon sentence. But it is rare that a judge will not impose the agreed upon sentence unless the sentence is patently unreasonable.
In those jurisdictions where a prosecutor will not negotiate a particular sentence, a lawyer’s knowledge of the judge will be the most helpful. That is why retaining an experienced attorney from the district where the case is pending is so valuable. He knows the lay of the land.
To give you an example of what can go wrong, an out-of-district lawyer told a client that he could get him a favorable sentence because he had “persuaded” a prosecutor not to insist on a specific sentence. The idea would be to let the judge decide based on both sides making their best arguments. The prosecutor had “relented”, said the lawyer, but in fact he had not. The judge was and is one of the harshest judges in the country, and would never favor a defense attorney’s argument over the prosecutor’s. The prosecutor sold the lawyer “ice in winter” precisely because the out of district lawyer did not know the lay of the land.
Two more observations: One, prosecutors in the U.S. are not your friends. They have a job to do. They are in the business of prosecuting. They are looking for unconditional surrenders and when they do surrender conditionally it is only because they have to. Fidel Castro once so presciently said, “the only thing that the U.S. accepts is that you sell out. The United States does not accept anything but surrender. It’s all or nothing.”
Two, defense lawyers are not personal friends of prosecutors. They don’t socialize with them. They don’t sit with them. They don’t eat with them. They don’t do anything with them. People who say otherwise are simply trying to impress defendants who grew up in a culture where personal contacts matter.