(These news items covered our criminal defense partner Jon Katz's legal analyses of  the Washington sniper trial, the Sami al-Arian trial, the Kobe Bryant trial, drug defense, child pornography defense, and obscenity defense; and Jon Katz's defense of the Plowshares case.)

By Jon Katz

As I previously have blogged, I could not stomach prosecuting, never have prosecuted, and never will. Unfortunately, criminal defense lawyers frequently are faced with whether to help the prosecutorial function, including snitch testimony, snitching without the necessity of testifying, and assisting criminal cross complaints. 

Federal criminal defendants, in particular, often feel extraordinary pressure to disclose others' crimes, and to provide testimony to assist their convictions. They often see that as the only realistic possibility to avoid draconian mandatory minimum sentences and to minimize their sentencing exposure overall. It is a system of legalized bribes for snitch testimony that, by its very nature, produces testimony that is suspect for its veracity. The prospect of snitch testimony often leads criminal defendants to plead guilty (for plea deals that reduce the counts that will be prosecuted or to reduce sentencing guidelines that reward pleading guilty). 

Commonly, for federal prosecutors to ask the court to find that a defendant provided substantial assistance -- in order to depart below mandatory minimum sentences and sentencing guidelines -- prosecutors require a full debriefing by the defendant of all criminal activity by anyone the defendant knows, including himself. The debriefing ordinarily is covered by an agreement that debriefing information generally will not be used against the defendant at his trial, nor to bring new criminal charges against the defendant. However, if the defendant testifies at his trial, the prosecution is eligible to introduce debriefing information that the prosecutor establishes to be contrary to the debriefing information. Here, a snitch's criminal defense lawyer becomes a temporarily-deputized prosecutor, helping the snitch prepare the debriefing information negotiate a snitching plea deal, and helping the snitch prepare to testify. 

In other circumstances, at least at the state level, prosecutors may condition a guilty plea offer on the defendant's providing more circumscribed snitch information --for instance, the source of the defendant's drugs in a drug prosecution, or information about a chop shop that buys cars stolen by a defendant car thief -- and may not even condition the plea on having the defendant testify against those people. Here, the criminal defense lawyer is assisting the prosecutorial function, perhaps having even been the first of the parties to raise the possibility of a guilty plea deal or case dismissal upon the defendant's divulging others' criminal activity. 

With assault cases, it is common in Maryland and Virginia for participants in a mutual or one-sided assault to swear out criminal cross complaints against one another. Sometimes a Maryland assault complainant will ask a lawyer to help draft the complaint. Sometimes a lawyer will advise a client to file an assault cross-complaint against an assault complainant, sometimes in the hope that this will encourage the original complainant to be willing to recommend that the prosecutor drop or inactivate both charges. The trials often are consolidated for the same trial date. Depending on the jurisdiction, the prosecutor may make an effort to determine which complaint is less credible; may decide to have both cases go to trial jointly (if the judge allows) one after the other, to let the judge or jury decide credibility; or may set one case to go to trial first, with the intention of deciding from that trial whether to proceed also with the case against the remaining complainant-defendant. With assault cross warrants, the criminal defense lawyer is assisting the prosecutorial function when trying to obtain a conviction against the defendant who is the complainant against the lawyer's client. 

In other instances, a criminal defendant provides prosecutors -- or the jury directly -- information to show that the defendant is being pinned with the crimes of the true perpetrator, and reveals the perpetrator's identity and criminal activity. In this instance, the lawyer who cannot stomach prosecuting is faced with the choice of helping with possibly the only real chance to vindicate an innocent defendant by helping get someone else convicted, or doing the opposite. 

Additionally, Maryland and Virginia both have procedures for seeking civil protective orders, where a violation of a protective order (e.g., to have no contact with the complainant or to stay away from the complainant's home, place of work, or school) amounts to a jailable criminal offense. Consequently, the lawyer who seeks such a protective order -- often the lawyer focuses on family law or other areas of civil litigation -- is assisting the prosecutorial function. 

Different criminal defense lawyers will have different discomfort levels handling the above-discussed type of work that assists the prosecution function. Those who would not be uncomfortable prosecuting will be less uncomfortable than I about handling such work. 

Over the years, I have learned that a substantial percentage of criminal defense lawyers share my discomfort about assisting snitching even if they would have little or no discomfort prosecuting numerous cases. Some absolutely refuse to assist snitching. As examples, Los Angeles attorney Barry Tarlow has been reported to refuse to assist clients with snitching. San Francisco legend Tony Serra has been reported to refuse such work, as well, and to have advised criminal defense lawyers of the importance of such an approach even at serious financial cost. Mr. Serra puts his money where his mouth is by closely following his conscience; he lives very spartanly, thus substantially reducing any financial pressures on his conscience. 

I prefer Tony Serra's approach against assisting with snitching. Fortunately, I have avoided all federal-style snitch assistance. Avoiding some of the other scenarios listed above (other than pursuing a protective order -- which I never have done nor will do) are more difficult to avoid, but I have been able to keep those to a minimum, as well. One way I keep this to a minimum is to insert an anti-snitch clause into my client contracts, which leads snitch-amenable suspects and defendants to seek other lawyers, or to switch to other lawyers if they decide only later on that they wish to snitch. Another way I keep this to a minimum is to refuse representation at the outset to a suspect or defendant who seems too much at risk to decide to snitch. 

Even with my contractual anti-snitching clause, I am bound to the governing lawyers professional conduct rules and court orders as to the extent to which I can avoid assisting snitching once my appearance is entered with the court. 

Public defender lawyers and court-appointed indigent defense counsel cannot easily avoid snitch representation. I suppose that if a public defender lawyer or court-appointed lawyer were outstanding in an area that did not often raise the possibility of snitch testimony (e.g., arson defense), the lawyer might be more successful in avoiding such work and keeping the public defender job.

Some might argue that refusing snitch assistance deprives defendants of an important weapon against a draconian conviction and sentence. That might be an issue if enough qualified criminal defense lawyers refused such assistance, but that day does not seem anywhere close.

I do not criticize criminal defense lawyers who assist snitching. I do applaud those who minimize or avoid participating in such work.   

Jon Katz.

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