The Benefits Of Being A Rat In The Criminal Justice System
Snitching is the bread and butter of federal cases -- and is often the best course an attorney can take to expedite his client's release from jail.
Loyalty among crooks has been enshrined in popular lore and language, from the Mafia’s “omerta” to the expression “thick as thieves.” A snitch who rats on his buddies might well end up wearing concrete boots or swimming with the fishes.
But if a jail sentence promises to be long, like 25 to life, it’s surprising how many people will trash the notion of honor among thieves and do whatever it takes to get less time.
For many, it’s their only way out of a life sentence. Because so many defendants are ready to rat, in some cases the guy who makes it quickest to the prosecutor’s door wins the prize. In the first few weeks of large-scale federal busts, everyone (and his lawyer) is pushing to be that first guy.
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The perils are many. In addition to putting his life in danger by snitching, the rat is not guaranteed any reward. If a defendant agrees to sit down with a prosecutor and his cooperation is rejected, practically speaking, he loses the ability to go to trial. That’s because he’s already admitted to every bad act he’s ever committed. He can’t then get on the stand and pretend he’s innocent.
The sessions are called “proffers” because that’s exactly what they are — offers to help, not guarantees. The prosecutor makes no promise once a defendant agrees to start talking. Although the defendant has limited protection from a so-called “queen for the day” agreement, that only protects the defendant’s statements from being used against him in the prosecutor’s case in chief. Should he, through his lawyer, proffer a defense at trial, the government could seek to introduce any of his proffer-session admissions. They can also use anything they’ve learned to develop new leads against the snitch, or to go after friends and family.
The first thing a prosecutor expects at a proffer is full transparency. The defendant must come clean on every bad act he’s ever committed — even those he hasn’t been arrested for. The government also wants information on every bad act (from gambling to check kiting) the defendant ever witnessed. No matter where, no matter when. Let’s say the mother of his children sold drugs to make the rent — he’d have to give her up. If his uncle showed him a defaced weapon five years ago, his name and contact information would have to be revealed.
Details are what count, both to verify the reliability of the information and to arrest new suspects. The details include: where the criminal activity occurred; what kinds of cars were driven; which drugs were bartered and in what amounts; and what exact weapons were used. The guys with the best memories have the advantage. Remembering that a co-defendant was driving a 2013 steel- blue Acura with Jersey plates is a lot better than saying I think he drove a sedan. It’s amazing how some guys, even ones with only high school educations, can remember makes and models of cars and guns.
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When going into a proffer, the defense attorney should assume the prosecutor (and agents working with him) know more about the defendant than he thinks. First, they’ll test the defendant to make sure he corroborates the intel they already have. If the guy gives them some piece of dirt about his own past misdeeds that they weren’t aware of, they’re likely to think he’s telling the truth.
Once the defendant passes the we-can-trust-him test, he then has to have enough information of value to help the government either convict his co-defendants or lead to more arrests.
If the client does well and the government agrees to write what’s called a 5K letter, the benefits can be huge. Most judges, recognizing that rats make the system work, will significantly reduce his sentence. Mandatory minimums no longer apply. He might get less time than a less culpable co-defendant just because he ratted.
But convincing the government that the client’s information is “substantial” enough to merit a 5K letter is tricky. He may spill his guts and admit new crimes, but if it doesn’t land them new arrests, they won’t sign him up. The defense attorney never holds the cards and it’s difficult to know what the government needs and what they already have.
One idea before bringing a client to proffer is to first suggest what’s called an “attorney proffer.” That’s when the attorney speaks hypothetically about the information his client could provide. Would that be enough to get a 5K? While the AUSA will make no promises, it will at least provide some idea of what they’re looking for.
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Another useful strategy is requesting a “reverse proffer.” That’s where the AUSA agrees to tell the attorney what information they have against the client — information that may not be in the indictment or initial discovery. The “reverse proffer” can occur before arrest and indictment.
If the government decides for whatever reason not to use a defendant as a cooperator, the defendant generally has to plead guilty without any benefit. Depending on the proffer agreement and federal district, prosecutors might even use the information gained in a proffer session against the snitch in asking for a higher sentence. That’s why good lawyers always tell their clients to think long and hard before attempting cooperation. There are no promises and once he starts down that path, there’s no turning back.
The biggest beneficiaries of this system are the guys who know the most and are facing the longest sentences. The mid-to-low-level players generally don’t have enough info to trade and could likely end up doing more time than the bigger player who gets to cooperate.
It’s often not fair and some judges (few and far between) won’t reward a cooperator even if he gets a 5K letter if they believe that the cooperator’s criminal acts were too egregious to reward snitching.
However, snitching is the bread and butter of federal cases — and for the near future, it will often be the best course an attorney can take to expedite his client’s release from jail.
Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.
