Cooperation agreements have their place and are an important part of any law enforcement program. However, the federal "war on drugs" has taken the practice of “snitching” to an entirely different level; to a point where it is all but breeding and encouraging perjury.
The practice of snitching has been around since existence of crime. The old saying that "there is no honor among thieves" best describes this practice. When a person is caught committing a criminal offense and has no defense to the charge, the only option available is to beg for mercy and to "cooperate" with the authorities with the hopes of receiving a favorable recommendation by the government at sentencing. Sometimes, if the person "cooperates" significantly enough, they even achieve an outright dismissal of their criminal charges. If caught red-handed, the first to talk is the first to walk. While this is the case in any criminal justice system, the federal system has taken this practice to a whole new level. This is due partly because the federal government tends to be more proficient at catching criminals red-handed, partly because of mandatory minimum sentences, and partly because of the intentional structuring of federal criminal "justice" system in a way that encourages and rewards this practice. Federal law enforcement is far and away the best funded, best trained and most relentless law enforcement system in our nation. The Drug Enforcement Administration alone has an annual budget in excess of 2.4 billion dollars to track down, apprehend and prosecute individuals involved in the illegal drug trade. This results in more officers, better trained officers, more thorough investigations, and more readily accessible and superior technology than ordinary state agencies. It is an extremely rare occasion that a federal indictment for a drug offense does not involve recorded conversations, video surveillance and/or controlled purchases from at least one or two of the alleged members of a drug conspiracy. The majority of the time, at least one person is caught "red-handed."
Once arrested, the criminal that is caught red-handed is soon faced with the distinct reality that he/she has no legitimate defense to the offense charged. Soon, after consulting with an attorney, the criminal also realizes that there is a mandatory minimum sentence associated with the offense. Mandatory minimum sentences require that a judge impose at a minimum, a specific time period of imprisonment. In federal drug prosecutions, the mandatory minimum sentence that is applicable to the offense depends upon the individual’s prior criminal history, amount of drugs involved, and type of drugs involved. The majority of federal drug offenses begin with a 10 year mandatory minimum and increase to 20 years and life as a mandatory minimum sentence depending on the aforementioned factors. The judge must impose this punishment regardless of whether or not the person has never been in trouble before, wasn't the main player or has other mitigating personal circumstances. Additionally, in the federal correctional system, the defendant there is no such thing as good time to subtract from the sentence nor is there any parole. Even with various program credits the convicted criminal must serve at a minimum, 85% of the actual prison time imposed.
Faced with a certain lengthy stay in prison, the criminal that was caught red-handed is soon offered one and only one way to avoid that prison sentence . . . . . "cooperation." The only possible way for a person convicted in federal court of a crime that caries a mandatory minimum sentence to avoid serving that minimum sentence, is to "cooperate" with the government. Without proffering and without a plea agreement the government cannot and does not file a substantial assistance motion with the court requesting that the person be given a specified percentage off of their sentence in exchange for their cooperation. Only the government has the power to file the substantial assistance motion. Both the Judge and the defendant are powerless to get below the mandatory minimum absent this motion. Whether or not the motion is filed is completely up to the discretion of the prosecuting attorney and his/her determination of whether or not the defendant has provided "substantial assistance." The "cooperating witness" turned snitch is advised of this fact in writing and is specifically advised that if the information is not "useful" to the government then no substantial assistance motion will be filed. Thus, a snitch only gets credit for getting others in trouble. It is a well known fact amongst these nefarious characters that the more indictments and pleas or convictions that result from the information the more time off the sentence one can expect to receive.
At this stage in the proceedings a desperate, often times, drug addicted individual, is faced with the sudden reality of spending 10, 20, 30 years to life in a federal penitentiary without the possibility of parole. Desperate times call for desperate measures. Knowing that the person is desperate and left with but one option, the government then approaches the desperate miserable fool who was caught red-handed selling drugs on tape and/or on video to undercover officers, and offers that person the one possible hope he has to avoid the lengthy prison sentence. Cooperation. They are told: “tell us what you know and we will consider filing a motion to get your sentence lowered.” At this point in time the desperate individual is offered the one thing that they want most, freedom. Intoxicated with the hopes and dreams of a second chance at freedom, cooperating witnesses begin talking. It is understood from the outset without a word needing to be uttered that “useful” information is the type of information that points the fingers at other people. The more people that you can name or accuse of committing criminal offenses the more “useful” your information is and the more time you can expect to be taken off of your sentence. The newly anointed snitch begins telling all, some truthful but some not always. So long as the information provided points to individual’s that the government suspects to be involved in criminal activity, the truth and consistency of the snitches stories seem to be all but irrelevant. Under cooperation agreements and proffer statements, it is the government who has the sole and complete discretion of determining whether or not the snitch is telling the truth, and even if the government knows the individual is not telling the truth, whether or not the agreement should be voided. Thus, the sole determination as to whether the witness is telling the truth is the federal government, the same people who are attempting to benefit from the witnesses information to secure a conviction.
The most troubling part of the cooperation process is that snitches interviews with law enforcement and the government are never recorded either through audio, video or through written statements of the cooperating individual. This is where the true problem with the system arises with the current snitch system in the federal courts. There is an old saying: “The truth never changes.” The single best way to determine whether or not someone is telling the truth is to ask the same question in different ways repeatedly. An individual who is telling the truth should not have any problems maintaining a consistent answer throughout the interview. A person who is being untruthful with their answers and who is making a story up will not be able to maintain consistent answers because they must try to remember what they said on previous occasions. In a rapid-fire type interview/interrogation, 99% of the people that are lying will not be able to maintain the consistent story, especially when pushed for details. Knowing that snitches do not make very good witnesses for the most part and knowing that their stories and details are prone to change with time, the government makes an intentional and calculated decision that facilitates and permits perjury to occur and go “unnoticed” or at the very least unchecked by the federal government. The government intentionally elects not to record cooperating witness statements either through audio recordings or video recordings and further elects not to even have a snitch write out their statements. As opposed to having the snitch speak for himself/herself, the government agents participating in the interview write their own reports regarding the information provided based upon their interpretation of the interview. This is done for a number of reasons:
First, if a witness has provided a prior statement that is recorded in any manner, the government is required by law to turn it over to the defense in the event that the witness testifies. Multiple inconsistent statements by a snitch make for powerful evidence on behalf of the defense. When law enforcement simply authors a report containing their interpretation of the witness’ statement, they are free to include or omit information that would otherwise make the witness’ statement inconsistent. For example, if a snitch says initially that Joe Blow was not involved in the conspiracy but later in the interview states well yes he was, law enforcement is free to record that in their reports as snitch 1 said Joe Blow was involved. Thus, inconsistent statements become consistent statements with nothing to refute the government’s contentions. There simply are no effective checks and balances without a recording that is handed over to the defense.
Second, the governments refusal to record snitch interviews permit the use of suggestive interrogations without the interrogators being called on the practice by defense counsel. Suggestive interrogations occur when law enforcement provides the person being questioned with information or suggestions about what law enforcement believes happened. The suspect/witness at that point can then simply agree with the interrogator and the answer is recorded as if the suspect actually said those words. Suggestive interrogations are a huge no-no when interrogating a potential criminal during the initial investigation because studies have found that suggestive interrogations lead to false confessions. This has in turn lead many states, including Iowa to consider passing laws requiring that all interrogation of suspects in felony investigations be recorded. When the snitch interviews are not recorded there is no possible way for a defendant and his/her attorney to determine whether the snitch said that something happened or whether law enforcement put ideas or words in their mouths based upon law enforcements own theory of the case.
Finally, the witnesses own words make for much greater impeachment than a defendant’s attorney simply questioning the witness about what they had previously told to law enforcement. No recordings of inconsistent or untruthful statements lead to less effective impeachment of the government’s star witnesses. It is much more effective for the defense when the defense attorney can cross examine the snitch with his/her prior inconsistent statement and when the snitch denies or the all-time favorite fall back, “does not remember”, play the witness’ own words for the whole world to hear that contradict the in-court testimony. In order to impeach a witness who denies saying something to the interviewing agents or who otherwise provides untruthful information, the defense then would have to call one of the interviewing officers in an attempt to have them testify as to what the witness really said. Is it really legitimate to think that a government witness will whole-heartedly sell out a fellow witness bound to the same cause of obtaining a conviction against the defendant?
Bottom line is that the cooperation system or snitch system currently employed is designed to protect snitches and avoid disclosure of their inconsistent and uncertain testimony. Intentional steps are taken wherein the single most compelling piece of evidence that would prove a witness is lying, exaggerating or at the very least is being inconsistent, is ensured never to exist. If the government really believes its own witnesses and is more interested in the truth the whole truth and nothing but the truth, above and beyond a conviction, why not document and record what witnesses say throughout the interview process? The justification that the government will let us know when a witness is lying is nothing short of ludicrous. Our country was founded upon the fundamental principal that unchecked, “self-regulating” government is the beginning of tyranny. The only remedy to the current perjury breeding environment is truthful recorded documentation regarding each and every word uttered by a “cooperating” individual. Their words can be presented to a jury and the jury can then make a decision regarding the witness’ credibility and truthfulness with all of the necessary facts before them. Until that is done, the federal snitch system will continue to breed and fester perjurous testimony of desperate individuals.