Mimesis Law
23 March 2019

Snitches’ Lives Matter

July 20, 2016 (Fault Lines) — In the prison population hierarchy, the only thing lower than a child molester is a snitch. While there are white collar snitches, my experience with snitches is almost exclusively with those offenders who have agreed to help the government in drug cases. In this post, I want to write briefly about what criminal defense lawyers should think about when representing a cooperator in a drug case. Then I want to hear your thoughts.

A snitch who lands at a federal prison (not a camp) will soon meet with the “shot caller.”  This person will confront the new inmate, demanding: “Give me your papers.”  By that, he means your Presentence Report, your plea agreement, your indictment, the judgment and committal order and so forth.

When you say you don’t have any of that stuff, you will be told you have two weeks to get it. If you don’t, you may well die after being stabbed 106 times until there is little or no blood left in your body. At the very least you will be extorted (for “rent”) or you will be beaten or raped or both.

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If you think I am exaggerating, you are either stupid or have never represented a snitch in a drug case pending in federal court. Snitches can and do die in federal prisons at the hands of other inmates. See, e.g., Colin Guy, Con who cut deal testifies in death of snitch in Beaumont penitentiary, Beaumont Enterprise (April 20, 2009).

One day after Keith Barnes entered a federal prison in Beaumont, Texas, he was dead. In brief, Brother Barnes died this way:

Barnes, according to assistant U.S. Attorney John Craft, was stabbed in the chest 106 times by Marlon “Funk” Mosely on May 7, 2005, while Ebron held Barnes in a choke hold. Barnes died one day after he arrived at the prison.

. . .

Ebron, Mosely and the other men accused of participating in a conspiracy to kill Barnes are all members of the “D.C. crew,” jurors were told by crewmember and inmate Charles “Little C” Sherman. He said the group of about 250 inmates from the D.C. area watch out for each other at the Beaumont federal penitentiary.

Id.

FCI Beaumont is located approximately 35 miles from the Gulf of Mexico; 100 miles east of Houston; and 268 miles west of New Orleans, Louisiana. It is a bad place to die, even though it is “only” a “medium” security facility.

Before I get to my “tips” on snitches, I have two points.

First, if you are the kind of criminal defense lawyer who says he or she will never represent a snitch then you are probably an asshole unworthy of the designation lawyer, let alone criminal defense lawyer. We have plenty of Social Justice Warriors and not enough criminal defense lawyers to represent people they would otherwise despise.

Our culture hates snitches. Certainly, the media dislikes snitches. For example, take a look at the Frontlines “documentary” that has the following introduction: “Snitch” investigates how a fundamental shift in the country’s anti-drug laws — including federal mandatory minimum sentencing and conspiracy provisions–has bred a culture of snitching that is in many cases rewarding the guiltiest and punishing the less guilty.”

Moreover, for many “snitches,” cooperation is the only salvation for them and their families. What the hell would you do if you were caught after being hooked into an enterprise so cruel and so violent that you had no choice but to participate?  The two most frightened “snitches” I have ever seen were two big-time mules for a Mexican cartel that picked up money and delivered drugs throughout the Midwest. Their deal with the government was to get their families out of Mexico. So, screw you if don’t represent snitches. Those poor bastards needed someone’s help, not to mention their wives and children.

Second, behind the scenes, the federal judiciary, in conjunction with the Bureau of Prisons, is beginning to take violence toward snitches in prison seriously. I won’t reveal details for obvious reasons, but for once things are being done that will be unnoticeable to most people, but these measures are well-thought out and hold out the hope that federal prisons don’t need to be a figurative and literal hell on earth for cooperators.

But snitches are and always will be in grave — and I mean very grave — danger once they enter prison and so too will their families. See here for one of several internet sites that “out” snitches. So, I next set forth several tips if you represent a snitch in a federal drug case:

  1. Have a “come to Jesus” meeting with the offender about the dangers (and benefits) of cooperation, not only to the offender but his or her family. (I well remember an MS-13 wannabe gang that decided to shoot up the home of the elderly parents of a snitch.)
  2. Never allow a cooperator to keep his or her “discovery.” Let them read it, but for God’s sake don’t let them keep it in their cell. That is most especially true of “proffer statements” from your client. If you want your client killed, just give him his “proffer statements” to keep.
  3. If your client is going to testify, never, never allow him or her to go back to the same prison. That should be a condition of agreeing to testify. Getting yanked out prison only to come back several months later is literally a scarlet letter.
  4. If your district is like ours, and sentence reductions normally take place via Rule 35(b) (as opposed to a U.S.S.G. §5K1.1 motion at the original sentencing) do not allow the defendant to leave prison. Don’t let him appear by telephone. Tell him to go about his business as normal and you will talk to him over the phone when it is all said and done.
  5. Your job is not over at sentencing. It is your job to see your client gets to the safest prison possible. Do the research—it is out there. Talk to the probation officer and see if she or he will help with the BOP designator. By all means, request the judge to state in the J&C that in “the strongest possible terms, the undersigned recommends placement at X.”
  6. Figure out those who are most harmed by your client’s cooperation. Get the judge to tell the probation officer to call the designator for the BOP with a list of names that your client should not ever be housed with in the same prison.

Now, I want to hear from you about your “tips” and your experiences. That is, unless of course you believe that snitches lives don’t matter.

Richard G. Kopf
United States District Judge (Nebraska)

14 Comments on this post.

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  • TMM
    20 July 2016 at 11:59 am - Reply

    Not on snitches, but another thing that defense attorneys should do (both in state court and in federal court) is check into the calculation of jail time credit. In the federal system (and in my state), the calculation of jail time credit is an administrative task performed by the prison after the client begins to serve their sentence. A miscalculation could add months to a client’s sentence. It makes little sense for an attorney to spend significant effort to cut months off the sentence imposed only to have that effort negated by an administrative miscalculation or an error in the paperwork sent to the prison by some local official.

  • Anonymous
    20 July 2016 at 3:00 pm - Reply
    • Richard G. Kopf
      20 July 2016 at 7:10 pm - Reply

      Anon.,

      I don’t judge snitches and you shouldn’t either if you are a criminal defenswe lawyer. If you are a criminal defense lawyer and will not stoop to representing snitches you are (1) a regular asshole and SJW of the worst strip; or (2) you know can’t represent a snitch zealously because your sensibilities are more important than the life of a snitch in which case you are an effete asshole; or (3) you are a coward and don’t have the balls to represent a snitch.

      To be generous, I will assume you aren’t a criminal defense lawyer since you comment without a name. In that case, Pacino’s exchange was brilliant acting, and I am happy to acknowledge his acting abilities. But, as you might have imagined, I am realist and I would hope that real CDLs don’t rely upon Brother Al to inform them what it means to be a real criminal defense lawyer.

      All the best.

      Rich Kopf

      • Anonymous
        20 July 2016 at 7:54 pm - Reply

        No, you misunderstood. The article just made me think of that scene from Scent of a Woman. Just my bad judgment posting the YouTube video on a serious post. I think your points are well taken. Turning state’s evidence and becoming a cooperative government witness is a decision rife with complications. The Government certainly has a large responsibility to ensure safety of the person. At the trial level, I’ve never had to deal with the question. I had an appeal once where the client was one of several defendants in a multi-state drug conspiracy. He could easily have gotten a much lighter sentence had he become a cooperating witness. He was only a driver. The troubling aspect to me was that one of the purchasers, the biggest drug dealer in a mid-West city (not Nebraska), walked away with about a year time served. This guy was a ruthless killer. Somehow, and I could never quite figure it out, he was able to keep coming back every time he testified and was given more and more time taken off his sentence. That came out in cross examination as I read the transcript. My client was a guy with no regions record. The evidence presented at trial was that he agreed to drive a shipment to make a few extra bucks. He refused to take a deal and if memory serves I think he received ten plus years. Several other low level conspirators took deals and testified. Some of the bigger, and very violent conspirators took deals and testified as well. So I don’t think fear was a consideration for the client. He just wasn’t going to be a snitch. I have to say, I kind of respected that decision. Of course, he ended up with a stiff sentence. I believe the ring leader (they were tried together) got life.

        • Richard G. Kopf
          20 July 2016 at 10:19 pm - Reply

          Anon.,

          I sincerly apology for my diatribe. Sorry!

          Your post was a wonderful way to illustrate how our culture feels about snitches. In retrospect, I thank you for posting it.

          Thank you also for responding to my ill-considered reply.I completely misread the intent of your initial comment. But, old men do that and that is not excuse. Cynicism is a disease that once caught is hard to heal.

          All the best.

          Rich Kopf

  • JoAnne Musick
    20 July 2016 at 10:45 pm - Reply

    Great post and wonderful, necessary tips. Sadly, as you point out, dealing with the snitch (as client) is very serious and must be well thought through by the CDL.

  • Thomas Ross
    21 July 2016 at 12:54 am - Reply

    To snitch or not to snitch, that’s the client’s question. I only advise them as best I can the consequences of doing do. I no more judge them for snitching than I do for the myriad of offenses they may or may not have committed. If they want to snitch, I negotiate on their behalf as best I can. If they don’t want to snitch I respect that and negotiate as best I can.
    My experience, at the state level, has mostly been that DAs won’t even give you a hard offer in exchange for testimony, just an open plea and a kind word to the judge. To me that’s not usually witworth it.

  • Bryan Gates
    21 July 2016 at 10:13 am - Reply

    What does it say about a system that tolerates and maintains a prison system where “shot callers” can target people with impunity?

    • TMM
      21 July 2016 at 10:50 am - Reply

      It says that legislators are more interested in efficiency than the safety of inmates. If most prisons were 200 beds or fewer, cell blocks were fifteen people or fewer (and only one or two cell blocks in the yard or cafeteria at the same time), every cell was a one-person cell, and you had enough guards per cell block three would probably be enough if you added in some other security procedures), then it would be much harder for any inmate to abuse another inmate. While larger facilities have economies of scale that reduce the per inmate costs (particular in terms of the programs that can be given to inmates), they make it much more difficult to provide the close scrutiny necessary to prevent inmate on inmate violence. We have essentially opted for facilities the size of small towns over facilities the size of a small high school.

  • Chris
    21 July 2016 at 11:16 am - Reply

    Snitches with just a drug history should get a min. security club fed camp to do their time. (unless there is some reason the snitch himself is too dangerous to go to the camp).

    Either way, something to think about. If I ever did defense work, I’d probably push most of my clients to snitch. Or, maybe not even call it sntiching anymore. Call it a confidential informant, call it being a good citizen doing their duty in the war on crime, call it community service to help pay back their debt for being involved in crime in the first place. I’ve always thought that mainstream culture should reject and marginalize “street” culture instead of embracing it. Maybe it all starts in elementary school, looking down on the tattle-tale. But the culture is what it is currently, and I don’t see it massively shifting in the near future.

  • Mario Machado
    21 July 2016 at 11:42 am - Reply

    Judge Kopf,

    Great post on a subject most are scared to touch even with a nine foot pole. With regards to your tip #3, it’s not usually doable in my district, at least when it comes to white collar cases. The BOP and the U.S. Attorney’s Office usually determine where and how (SHU or not) a client is housed while she is cooperating, and I’ve had clients housed in the same BOP facility with people that have ratted them out, and with people they’re going to testify against. Fortunately, to date not one of them has been harmed.

    There’s been cases where co-cooperators are removed from the general population and sent to the SHU while a case is pending, for obvious reasons, but to the heavy detriment of my clients and their families. At that point, when you have no say on whether she stays in the SHU, some hand holding becomes necessary.

    My only “tip” would be to become extremely learned on the subject before taking on a client that has chosen to become a turncoat. And if someone doesn’t have the stomach to argue zealously and competently during a Rule 35 hearing, detailing what a wonderful cooperator your client has been, don’t do it. As you know Judge, there are many variables at play in the land of cooperation, and the defense attorney’s skill, or lack thereof, can determine whether the client’s cooperation was done for naught.

    Finally, for the uninitiated: yes, I’ve represented turncoats (sounds so much better than chivato, snitch, rat, or stoolie. Sorry Mr. Orwell) before, and most federal practitioners (even those who put on their best badass poses/selling points for clients and colleagues) have done so as well. But given how the system has evolved, cooperating has unfortunately become not unusual. The late former Senior District Judge Norman Roettger, Jr. from the SDFL said it back in 1998 (U.S. v. Sepe, 1 F.Supp.2d 1372 (S.D. Fla. 1998):

    “In the 10 plus years since the sentencing guidelines went into full force and effect in the federal court system we have come to a situation where the institutions of the Bureau of Prisons are basically anthills of snitches, each one trying to figure out how to work a deal whereby the government will bestow a “get out of jail early” card upon them in the form of a rule 35 motion.”

    The best to you and yours Judge.

    Mario

  • bacchys
    22 July 2016 at 11:27 am - Reply

    What I really hear in all of this is that the government has (almost) completely failed to do its job in protecting those it has incarcerated, and that there’s essentially zero accountability for that failure.

    Anti-snitch sentiment is hardly limited to the (recognized) criminal class, too. Look at the fate of cops who cross the Blue Wall of Silence, or that of whistleblowers against government malfeasance.

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    23 July 2016 at 4:44 pm - Reply

    […] exactly, but sort of.  As a prelude to his discussion of the responsibilities of criminal defense lawyers toward their clients who snitch, which largely involves keeping them […]

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