"Not a team sport."
That's how the federal prosecutor described federal drug defense practice after a hearing in which two colleagues and I had shown a certain unity of purpose on behalf of our clients.
Divide and separate is the name of the game for federal prosecutors (that and, I can bribe witnesses but you can't). It's much easier to convict four people when they can be cut out from the herd one at a time. It is often true that "if nobody talks, everybody walks," but the corollary is that one talker takes everyone else down.
So this prosecutor was trying to convince us to get our clients in to debrief. As a prod, he described the evidence against our clients and told us that the fourth defendant, Mr. Jones, was already scheduled to come in and debrief. "I hate to see the top guy get the benefit of cooperating at the expense of the little guys," he said. A fine humanitarian.
When I went to review discovery at the U.S. Attorney's office, this prosecutor had left a yellow sticky conspicuously placed on the inside cover of one binder: "Jones debrief Tuesday 12:30 p.m." If he was trying to convince me that Mr. Jones had decided to cooperate, he was trying too hard. And as a bonus, his assertions about the state of the evidence turned out to be untrue.
Federal drug defense can be an every-man-for-himself venture. If you know that a codefendant will cooperate and convict your client, it often makes sense to beat that codefendant to the debriefing table. The U.S. Attorney's Office wants it that way.The Government's advantage is reduced when the defendants and their lawyers coordinate their efforts; when defendants are pointing fingers at each other, the Government just has to sit back and watch as the defendants do the work of convicting each other.
But federal drug defense can be a team effort. This is most obvious in the "nobody talks, everybody walks" case or where more than one defendant makes it to trial, but it is also true where the Government has everyone on the hook. Even if everyone is looking for the benefit of a 5K1, lawyers who work well together can coordinate to make the 5K1 pie bigger for everyone without prejudicing anyone. It requires communication and trust among criminal-defense lawyers who are lone wolves by nature.
The defendants benefit and the prosecutor gets what he wants. The only loser is the prison-industrial complex.