Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »

×

The perils of snitching

I just renewed my application to stay on the district court's CJA list.  That's court-appointed counsel for Federal criminal cases, and for reasons I really can't fathom, I didn't apply to get on the list until three years ago.  The differences between that and handling state court appointments couldn't be starker.  I had a sentencing on Tuesday set for 11:00 AM.  I showed up at precisely 11, then realized I hadn't retrieved my glasses, keys, and cellphone from the metal detector station.  I asked the bailiff if I had time to run down and get them -- would've taken a couple, three minutes -- and she said no, the judge wanted to get started.  And he did, a minute later.  If I had a sentencing in the Justice Center at 11, I would've brought a couple magazines.

And the pay...  State appointments pay me $50 to $60 an hour, and a first degree felony is capped at $1,500.  Last year, just before the caps were raised (from $1,000), I spent eleven days in two rape trials and got $2,000 for my efforts.  But the cap on Fed cases is around $9,000, and they pay $126 an hour.  Most of the Federal defendants are housed in a correctional facility in Youngstown, about a 90 minute drive each way.  You'd be surprised how very few people are willing to pay me $126 an hour to drive my car.

So I was a little taken aback when I got into a conversation a while back with another lawyer, and found he'd been kicked off the CJA list because he wouldn't allow his clients to give information -- make proffers -- to the Feds.

*   *   *   *   *

Got a killer brief due tomorrow, so no post.  See you on Monday.

My initial reaction was that he should've been kicked off the list.  Most Federal cases anymore have the following characteristics:  (a) your client is charged with a drug offense; (b) the Feds have wiretaps, surveillance videos, undercover agents, and evidence out the wazoo against your client; (c) the penalties your client is facing are Draconian, especially if he's got prior felonies, and especially prior drug felonies -- a third drug case can make him a career offender, where he's looking a 25-year plus sentence; and (d) the only chance to get out from under all that is for your client to give the Feds information on his co-conspirators, especially ones higher up the food chain than he is.  Removing (d) from your palette leaves you with the other three, and that can wind up as a horrible painting. 

Then again, maybe he has a point.  There are certain risks to giving information against drug dealers, as Rachel Hoffman and Andrew Sadek might tell you.  If they were still alive.

Sadek was a North Dakota college student.  His body was found a year ago in a river with a bullet in his head.  Investigators haven't decided whether Sadek was killed or committed suicide; if the latter, he apparently came up with a posthumous method of disposing of the gun, because one wasn't found.  A more likely scenario emerged when it came out that Sadek had agreed to work as a confidential informant for the police after being caught selling marijuana.

While there's not a definitive answer as to how Sadek met his end, that's not the situation with Rachel Hoffman.  Back in 2008, she was 23 years old, just a year out of Florida State, and was on probation for possessing an ounce of marijuana when the cops found another five ounces in her apartment.  The cops told her that because of the probation violation, she was looking at prison time, and pressured her to work as an informant in a sting operation involving 1,500 ecstasy pills, two ounces of cocaine, and a handgun.

In a little over her head, do you think?

The narcotics detectives arranged for the buy at a specific location, but the two suspects changed it, and Rachel's handlers lost track of her.  Her body was recovered two days later; she'd been killed by the gun she was supposed to buy.

I've said before that if a law is named after you chances are you came to a very bad end, and that's true here; a year after her death, "Rachel's Law" went into effect in Florida, imposing a number of requirements on police use of informants.  Rachel's killers were caught, convicted, and sentenced to life in prison.  Her parents sued the city of Tallahassee; three years later, the suit was settled for $2.4 million.

I'm not saying the other lawyer was right.  You can't draw a bright line; as long as the client is aware of the risks -- and by the time they've got a Federal narcotics charge, they very likely are -- it's their call.  And if they believe running that risk is worth chopping a decade off a prison sentence, I'm not going to stand in their way.  A few years back I had a case where a guy was found with major drug offender weight, and was looking at 10 years mandatory.  Before I even got involved, he rolled over on his supplier by doing a two-kilogram buy.  He wound up with a three-year sentence.

But oftentimes, we as lawyers get a bit cavalier about the whole thing; it's an easy way to resolve the case, and too often that's appealing to us.  Sometimes, you have to remember that you're not going to be on the one whose body is found in the creek, and make sure your client understands that his might be.  Doing something like that to avoid a decade in prison might make sense.  It's hard to see how getting out from under a marijuana charge does.

Search

Recent Entries

  • October 16, 2017
    En banc on sentencing
    The 8th District takes a look at what State v. Marcum means
  • October 13, 2017
    Friday Roundup
    Musings about the death penalty and indigent defense
  • October 11, 2017
    Case Update
    SCOTUS starts its new term, and the Ohio Supreme Court hands down two decisions
  • October 10, 2017
    What's Up in the 8th
    Collaboration by inmates, fun in Juvenile Court, the limits of Creech, and more
  • October 5, 2017
    State v. Thomas
    The Ohio Supreme Court reverses a death penalty conviction
  • October 4, 2017
    Russ' Excellent Adventure
    A juror doesn't like me. Boo-hoo.
  • October 3, 2017
    What's Up in the 8th
    What not to argue on appeal, waiving counsel, the perils of being a juvenile, and expert witnesses
  • September 12, 2017
    What's Up in the 8th
    Prior consistent statements, whether State v. Hand is applied retroactively, and a big Coming Attraction
  • September 11, 2017
    Case Update
    Looking back at Melendez-Diaz, and the 8th goes 0 for 2 in the Supreme Court
  • September 8, 2017
    Friday Roundup
    Pro bono work, screwed-up appeals, and is Subway shorting their customers?